The Obama administration called on Thursday for the closure of Guantanamo Bay within the next year. The move will be greeted with widespread approval around the world, the end of a blotch on America's image abroad. Coming in the form of an executive order, it carries with it the power of law.
"We are going to win this fight, we are going to win it on our terms," Obama said.
Yet Obama has already found that closing the prison is easier said than done. And if he fails, there'll be no shortage of Republicans to remind him that they told him so. On Wednesday, Senate Republicans voiced skepticism with the idea that the president would be able to break down a detention center housing what they claim most dangerous terrorists.
"Personally I think it's stupid to shut down Guantanamo without having an absolute place where you can ship these people, and that's going to create an awful lot of problems," said Sen. Orrin Hatch (R-UT).
"I don't want them in Texas," said Sen. John Cornyn, (R-TX). "I intend to write a letter saying, 'Don't send them here. And I would suspect there might be Senators from 50 states who say the same thing. I don't know."
Those two Republicans could end up being placated once the writing is etched on the wall. But, at least at this juncture, they have company in their skepticism. A CNN poll, conducted last week, showed that 47 percent of the public believes Guantanamo should continue to operate, while 51 percent believe it should be shut down.
The real challenges, however, are not political but legal in nature. The president and his lawyers will have to maneuver deftly in order to remove 250 detainees from a facility in under a year. Federal criminal trials will commence, and in some cases individuals will be transferred to other prisons.
"You want to handle this situation methodically to avoid complications," said Sarah Mendelson, Director of the Human Rights and Security Initiative at the Center for Strategic and International Studies. "For every soul that has been held there you need to figure out each individual case and what the solution is. For those who can be released, there needs to be diplomatic arrangements. You can't send them to somewhere where they will be tortured."
As Mendelson sees it, the process of emptying Guantanamo could take a year or less, depending on how quickly indictments for those being prosecuted can be delivered and the extent to which other countries are willing to help out. A draft release of Obama's executive order said the facility should be "closed as soon as practicable, and no later than one year from the date of this order."
In issuing the order within the first week of office, Obama is following through on a pledge he made during the campaign, a campaign in which the Bush administration's interrogation and national security policies were often branded as worldwide embarrassments. But the pending order also was spurred by other, non-political factors. The current policy for detention was either unsustainable or getting to that point, legal scholars argue. And the Obama team was cognizant of the need to remove the detention center's tint before prosecuting its inhabitants.
"It doesn't surprise me that the new administration wants to put detention policy on a stronger legal footing," said Matthew Waxman, a Columbia Law professor and former Bush administration official who has called for Guantanamo's closure. "There was the question: How much does this administration want to devote to continually litigating very contentious legal claims, case by case, in habeas courts? That's part of it. And then there is also the chance that, especially as the longer detentions go on, the more skeptical the Supreme Court is likely to be in future cases coming up before it, about the scope of government detention powers."
Obama took the first step towards changing the landscape on Tuesday night when he ordered a halt to military war crimes trials for 120 days. On Wednesday, Senate Republican Whip Jon Kyl (R-Ariz.) said that he disagreed with the decision to halt the trials.
The pause in the proceedings allows the new administration to size up the hurdles going forward. It also could avoid the legal trap of double jeopardy, which prohibits prosecutors from trying individuals on the same charge in different courts.
Such a concern wasn't shared by all legal scholars. Nor was concern that the 21 pending cases would, for a short time, not have a legal venue. The move to stop the military tribunal process in its tracks, it was argued, was meant to exhibit as clean a break as possible from the prior administration.
"There were cases going on as he was inaugurated," said Jen Daskal, senior counterterrorism counsel for Human Rights Watch. "And he is now the Commander in Chief and the President. He wanted to act quickly to put a halt to proceedings that are patently unfair and perceived around the world as unfair. This could be showcased to the world as a renewed respect to the rule of law."
With additional reporting by Ryan Grim
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