There are 174 detainees at Guantanamo. Some 48 of them, the administration says, are too dangerous to do anything with but hold indefinitely, without charges. The administration has made noises about implementing a review process for them that would at least give them access to attorneys, but with little access for appealing determinations by prosecutors--or the president--that they should continue to be held, indefinitely and regardless of whether the evidence against them was obtained by torture.
Where those detainees will be held, and whether and how to prosecute them, has been the primary object of controversy with not just Republicans in Congress, but with some Democrats who seemingly are more frightened of being called soft on terror than in upholding their oath of office and the rule of law. In the lame duck session, those members of Congress passed a ban on the use of government funds being used to transfer detainees, even for trial.
In response, the Obama administration is preparing to issue a signing statement challenging that restriction.
Obama administration officials say they plan to reject Congressional efforts to limit the president's options on Guantanamo, setting the stage for a confrontation between the president and the new Congress on an issue that has been politically divisive since Inauguration Day.Hope for any kind of actual justice for these detainees, not to mention some restoration of the U.S. as a nation of laws, is fading. The assertion of executive authority on Guantanamo with a signing statement would be a start, but it isn't enough. That authority has to be used in the interests of justice and the rule of law for it to be meaningful.
The Guantanamo provisions, which include limits on where and how prisoners can be tried, were attached to a spending bill for military pay and benefits approved by Congress late last year. Some Administration officials are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority. Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.
The statement, officials said, would likely be released along with a new executive order that outlined review procedures for some -- but not all -- of the 174 Guantanamo prisoners still held without charge or trial....
Officials said the White House is still weighing how to calibrate the signing statement. A statement rejecting all of the bill's Guantanamo provisions would almost certainly be viewed as provocative by Congressional Republicans and some Democrats. But administration officials view the provisions as clear encroachments on the president's right to prosecutorial discretion and some are pushing for their blanket repudiation.
The reliance on detention orders and a signing statement -- tools used repeatedly by former President Bush, who built Guantanamo nearly a decade ago -- is seen by Obama's advisers as among the few options left for an administration that has watched the steady erosion of its first White House pledge nearly two years ago: to close the prison.
"There is obviously an irony here," said one Obama administration official, "but if we resort to this, it is to close Guantanamo, not keep it open."
The White House has, until now, balked at confrontation even as it watched its policy options dwindle. Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute detainees in federal court, would in fact use it.
"All presidents want to preserve maneuverability and authority, that is natural," said Elisa Massimino, president of the civil rights organization Human Rights First. "But President Obama has had the authority to move prisoners to the United States, he's done the background work to identify people to bring to justice and he's squandered the opportunities to exercise that authority. It is striking to now see a fiercer desire to preserve authority than to use it," she said.