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Going nowhere on Gitmo

With seemingly little support in Congress for closing the Guantanamo Bay detention center, President Obama is finding it difficult to make good on his pledge to shut the facility.

January 12, 2011

President Obama has received, and deserves, criticism for not working harder to make good on his pledge to close the detention center at Guantanamo Bay, Cuba. He also has been criticized, again appropriately, for equivocating on whether he will keep Atty. Gen. Eric H. Holder Jr.'s promise to try alleged 9/11 conspirators in federal court rather than before a military commission.

But Congress is also to blame for frustrating the president's intentions. Most recently, it approved a defense authorization bill that bars the use of federal funds to transfer Guantanamo detainees to the United States or to send them to foreign countries without a litany of assurances from those countries. The legislation put the president in an uncomfortable quandary: Either he could veto the entire authorization bill, which included funding for a host of defense-related activities such as the wars in Iraq and Afghanistan, or he could sign it, which would make it that much more difficult for him to close Guantanamo.

The president's advisors discussed a third option: signing the bill but issuing a "signing statement" saying that he wasn't bound by the Guantanamo provisions and that he retained the constitutional authority to do what Congress prohibited. Such a statement would be reminiscent of a practice for which President George W. Bush was rightly criticized.

In the end, Obama signed the legislation — with a signing statement that, though critical of the two Guantanamo provisions, stopped short of asserting the right to disregard them. Instead, Obama promised that "my administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future."

Having decided to sign the bill, Obama was right not to try to have it both ways by issuing a signing statement purporting to declare part of it invalid. Another alternative would have been to refuse to sign the bill at all. That would have been risky, but if the gamble had worked, the veto would have pressured Congress to submit an authorization bill without the Guantanamo language.

Members of both parties in Congress seem adamant in their opposition to closing Guantanamo and to moving detainees to this country for either imprisonment or trial. Given such resistance, the president may be tempted to give the issue even less priority in the year ahead.

That would be a mistake. As Obama has observed, Guantanamo is a recruiting magnet for Al Qaeda. Closing it and trying even the worst accused terrorists in civilian court would be an affirmation of this society's belief in the rule of law. Obama needs to send that message more forcefully to Congress and the country.

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