Former Vice President Joe Biden is usually first to bring up the record of the Obama administration in his 2020 presidential campaign. But at the Democratic debate in Los Angeles, Biden had to defend an area where the administration failed.
Obama left office without closing the Guantanamo Bay detention facility.
The facility remains open under President Donald Trump, housing about 40 detainees at an annual cost of about $540 million.
Biden said that the Obama administration tried to close Guantanamo. But it was missing one thing.
"You have to have congressional authority to do it," Biden answered Dec. 19.
One way Obama wanted to close the facility was by moving detainees to U.S. facilities, which Congress blocked through legislation. Some have argued that Obama did have other options to close Guantanamo, but they were unpopular even within his own party, and it’s not at all clear they would have been successful. We’ll recap the history.
On Jan. 22, 2009, Obama issued an executive order calling for Guantanamo’s closure within one year. That year was Obama’s best chance to close Gitmo since he held large majorities in the House and Senate.
But Obama angered lawmakers after he transferred a detainee to New York, announced a plan to bring the terrorists responsible for 9/11 to the United States, and planned to purchase a facility in Illinois for detainees.
Obama’s moves led Congress to repeatedly bar the use of funds to house Guantanamo detainees in the United States.
Obama officials discussed the possibility of using executive authority to close the detention camp, but ultimately ruled that out.
Obama was forced to "choose between two politically unsavory options: Invoke executive power to relocate the remaining detainees in defiance of a statute, or allow history to say he never fulfilled his promise to shutter the prison," wrote New York Times reporter Charlie Savage in November 2015.
Obama’s Office of Legal Counsel never bought the argument that these the congressional restrictions were unconstitutional, said Avril Haines, a legal adviser for the National Security Council during the Obama administration. (She was part of efforts to try to close Gitmo but not within the Office of Legal Counsel.)
While some during the Obama administration argued that the congressional ban on transfers prevented Guantanamo from closing, Gregory B. Craig, White House counsel in 2009, and Cliff Sloan, special envoy for Guantanamo closure in 2013 and 2014, wrote a Washington Post op-ed in November 2015 arguing that Obama did have authority to close the facility.
"Under Article II of the Constitution, the president has exclusive authority to determine the facilities in which military detainees are held," they wrote. "Obama has the authority to move forward. He should use it."
Obama did decide on one approach for removing Gitmo prisoners: transferring them to other countries. But he ran out of time.
On Jan. 19, 2017, Obama wrote a letter to Congress stating that the restrictions "make no sense" given the lack of escapes at supermax and military prisons.
Cully Stimson, former deputy assistant secretary of defense for detainee affairs during President George W. Bush’s administration, said it was the Obama White House that soured relations with Congress from the beginning.
"Instead of working behind the scenes with members of the president’s own party to forge an acceptable closure plan, the administration took unilateral action, which in turn soured its relationship with Congress," Stimson wrote.
The Obama administration also could have been more aggressive about transferring prisoners to other countries. "Biden ignores the fact that you can close Guantanamo without bringing them to the U.S. and violating a congressional statute," Stimson said. "It’s always been an option and preferred option to send detainees to their home countries and third party countries. Any administration including this one could do that today. It’s difficult, it presents challenges, but it is possible."
Asked why the Obama administration didn’t close Guantanamo, Biden said, "You have to have congressional authority to do it."
Congress made it hard for Obama to fulfill his promise, blocking Obama from transferring detainees to U.S. prisons. Obama was allowed to transfer detainees to other countries, and did transfer many of them. But he ran out of time at the end of his presidency, keeping the prison open with 41 detainees.
Some legal experts said Obama had the legal right to close Guantanamo but lacked the political willpower. Others questioned if he truly had that power. Ultimately the Obama administration didn’t take that tack, so we’ll never know. Certainly what Congress did made the task much harder.
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