On his second day in office, President Obama issued an executive order to shutter the Guantanamo Bay detention camp within one year--without any plan for how to dispose of the 241 detainees held there. With the clock ticking, the president is discovering that closing Guantanamo is more easily said than done, especially now that his own party in Congress has deserted him.
Recently, the Senate, including the Democratic leadership and nearly all of its members, refused to grant the president the $80 million he asked for to close the facility, voting 90 to 6 to strip the requested funds from a war-spending bill. In a stunning rebuke, Senate Majority Leader Harry Reid said "Democrats under no circumstances will move forward without a comprehensive, responsible plan from the president. We will never allow terrorists to be released into the United States."
The president may find it nearly impossible to meet his deadline to close Guantanamo without Congress's support. And the $80 million may be the least of his challenges. His greatest obstacle could be a national security law--and one that he voted for. The REAL ID Act of 2005 prohibits anyone affiliated with terrorist activity from entering and living in the United States. (It does not cover people brought here to be incarcerated.) Primarily an immigration reform measure, the act specifically excludes from our nation any foreigner who "has engaged in a terrorist activity . . . is a member of a terrorist organization . . . endorses or espouses terrorist activity or . . . has received military-type training . . . [from] a terrorist organization." This would cover many, if not all, of the prisoners at Guantanamo. The act was included in an appropriation bill, which then-Senator Obama voted for, along with 98 other Senators.
The REAL ID Act could pose a significant impediment to President Obama's plan to close Guantanamo. There are approximately 30 detainees who have been cleared for release from imprisonment, and the administration is trying to find them a home--possibly in the United States. The president has embarked on a major diplomatic effort to convince our European allies to open their doors to some of these 30 prisoners; but our allies have been reluctant to comply unless President Obama also allows a number to live freely in the United States. Indeed, its appears the administration has practically guaranteed domestic release to European leaders: "we would release them into this country," said Attorney General Eric Holder, after meeting with European officials, when asked about the possible fate of some of the Guantanamo prisoners. Meanwhile, the Europeans have pressed for specifics on the number of inmates the United States plans to free domestically before they make any promises of their own.
But for the administration to make any firm commitments to European leaders, first it may have to persuade the Democrats in Congress to repeal or amend part of the REAL ID Act. But, how will President Obama explain that 99 Senators--including himself--got this important issue wrong only four years ago? If Congress is unwilling to fund Guantanamo's closure, they may be all the more reluctant to rescind part of the REAL ID Act so that former detainees can live freely among the general public. And President Obama may have trouble defending why he has put his administration on a collision course with a law that he recently voted for.
Meanwhile, one federal district court judge has already ruled that several Guantanamo detainees must be released in the United States. Last fall, in a ruling from the bench, Judge Urbina of the D.C. District Court ordered that 17 Chinese Muslims known as Uighurs--who have received paramilitary terrorist training--be brought to Washington, D.C., and set free in our nation's capital. The judge cited no law or treaty to support his order. Nor did he attempt to reconcile his ruling with the REAL ID Act, which excludes anyone who has trained with a terrorist organization from entering the country. The Uighurs were cleared for release over four years ago, but no nation has been willing to accept them. They do not wish to be returned to their home country of China, for fear that they could be imprisoned and tortured.
The Bush administration appealed, arguing that the release of the Uighurs into the United States conflicts with the REAL ID Act and other immigration laws. This February, the D.C. Circuit Court of Appeals reversed Judge Urbina's ruling on the grounds that he had no "power to order an alien held overseas brought into the sovereign territory of [our] nation and released into the general public." Instead, the D.C. Circuit Court left the Uighurs fate to the political branches, while noting (without deciding) that there could be legal issues as to whether the president "may ignore the immigration laws and release [the Uighurs] into the United States without the consent of Congress."
The Uighurs appealed the ruling to the Supreme Court where it is currently pending. Late last Friday the Obama administration filed a brief urging the Supreme Court to deny the Uighurs' appeal, based largely on separation of powers grounds. While arguing that the Judicial Branch has no power to free the Uighurs, the Department of Justice repeatedly emphasized the Executive Branch's prerogative to decide their fate.
And, the administration may well determine that some (if not all) of the Uighurs should be released in our country. In fact, one administration official has said that the President may not only seek to free the Uighurs--but also may offer them government assistance to adjust to life in America: National Intelligence Director Dennis Blair said the Uighurs, if freed to the United States, might receive taxpayer-funded aid to "start a new life and not return to some of the conditions that may have inspired them in the first place."
Not so fast says Republican Senator Jeff Sessions of Alabama, the ranking member of the Judiciary Committee. He has sent two letters in the last two months to Attorney General Holder asking how the administration plans to release people with terrorist ties into the United States without directly violating the REAL ID Act. The administration has yet to respond.
Senator Sessions states that "[i]t would be both dangerous and contrary to our immigration laws to admit trained foreign militants into our civilian population." Specifically, REAL ID expressly bars entry to anyone with paramilitary terrorist training. Sessions explains that the act, therefore, forbids entrance to the Uighurs because they have "trained at camps run by the Eastern Turkistan Islamic Movement, which has been designated as a terrorist organization by both the United States and the United Nations." (President Obama is aware of this fact, having acknowledged that its leader is a "brutal terrorist.")
The reason the administration has yet to reply to Senator Sessions may be that it recognizes it will have to ask Congress to repeal parts of the REAL ID Act for domestic detainee release to be lawful. And--until recently--the president might have expected full support from members of his own party. Given that Congressional Democrats have just refused funding to close Guantanamo (evidently they are not especially concerned about the President's self-imposed deadline)--they may be in no hurry to rescind part of a national security law so that we can open our doors to trained militants.
Stephanie Hessler is a former constitutional lawyer for the Senate Judiciary Committee.