A bill that could go to the Senate floor as early as next week would make it impossible for President Barack Obama to move any Guantanamo prisoners to the U.S. for any reason, effectively blocking his plan to close the facility by January.
The bar on all such transfers was written into the Senate version of the Defense appropriations bill passed by the Appropriations Committee last week and is stricter than current law, which allows prisoners to be brought to the United States for trial as long as Congress is notified 45 days in advance of any potential risks.
The language, proposed by Appropriations Chairman Daniel Inouye (D-Hawaii), underscores the impatience many senators from both parties feel over the White House's failure to settle on a site or a legal framework to detain prisoners who would have to leave Guantanamo in order to meet Obama's January deadline.
The Senate panel also omitted any money to close Guanatanamo or build a new facility.
"We have not provided funding for the closure of Guantanamo, because the administration has yet to produce a credible plan," Inouye said.
"The Obama administration can't close Guantanamo without bringing some detainees to the United States, and Congress's actions show that the political price of doing so will be high," said Columbia Law professor Matthew Waxman, who worked on detainee issues at the Defense and State Departments under the Bush Administration. "Meanwhile, in emphatically barring transfers to the U.S., Congress undermines the administration's efforts to get other countries to take them."
"The administration may hold onto that deadline to keep pressure on its officials and for diplomatic reasons," Waxman said, but "at this point, closing Guantanamo by the January deadline is virtually impossible."
A White House spokesman declined to answer questions about the Senate language or when the administration would announce a detailed plan to close Guantanamo. An executive order Obama signed on his second day in office contemplated recommending such a plan by July, but officials extended the deadline by another six months.
A Republican Senate aide said most senators had expected some word from the White House by now.
"They're not even discussing this with us. It's gone from being a big deal on the second day of [Obama's] administration to kind of not a priority," said the aide, who asked not to be name. "To find a place, put them in it, and secure it in less than four months? There's no way to do that."
Sens. Sam Brownback (R-Kan.) and Pat Roberts said Wednesday they had heard enough from the administration to be "confident" that Fort Leavenworth had been or would be scratched from the list of possible relocation sites for Gitmo prisoners.
FBI Director Robert Mueller said yesterday that there would be "very, very little risk" in bringing inmates to a federal prison like the one in Florence, Colo. But he suggested that terror inmates put in a local jail (as is sometimes done with federal prisoners in Virginia) could "affect or infect other prisoners or have the capability of affecting events outside the prison system."
The defense bill could come to the Senate floor in the next few days, a Democratic aide said. The Gitmo language could be changed and money even added in a conference committee, but the Republican aide said that could cause an uproar.
"I think adding something that momentous in conference would be a challenge," the staffer said.
Last month, federal officials visited a possible detention site at a state prison slated for closure in Standish, Mich. However, lawmakers said they have gotten no clear indication of whether the administration thinks the option is viable.
"Our administration's view is that bureaucracies work best with a deadline, and so we set ourselves a deadline," Defense Department General Counsel Jeh Johnson said last week. "We remain committed to doing this on the deadline that the president set, but there are many challenges."
Since January, the Obama Administration has transferred about two dozen prisoners from Guantanamo to locations overseas. However, only one prisoner has been brought to the U.S.
On June 8, the U.S. flew Tanzania Ahmed Ghailani from Gitmo to New York to stand trial in federal court on charges stemming from the bombings of U.S. embassies in Kenya and Tanzania in 1998.
The transfer-barring provision approved last week has garnered little press attention, though it was mentioned deep in an Associated Press dispatch on the legislation.
The language Inouye included in the bill is identical to language he proposed in May via a Senate floor amendment to the supplemental appropriations bill.
A conference committee later softened the language from a flat ban on all transfers to a bar on releases in the U.S., and a requirement for a Congressional report and a notice to state governors before trial or detention in the U.S. Obama signed the measure into law in June 24.
The complete bar Inouye has again proposed has the political benefit of making it nearly impossible for Republicans who oppose closing Guantananmo to propose stricter language that could put Democrats on the spot.