The inability of the Obama administration to follow through on its promise to close the detention center at Guantanamo Bay has largely been attributed to successful Republican (and Democratic) efforts to block funds for an alternate domestic facility.
But there is a far more complex legal argument that has complicated the process. And that involves figuring out a way to handle the so-called "fifth category" of detainees who are deemed too dangerous to release but too difficult to prosecute due to evidentiary issues. The president and his legal team have spent an enormous amount of time trying to come to some arrangement that would satisfy the administration's hope of closing Gitmo and obvious national security concerns. Several months ago, the Guantanamo Review Task Force outlined a process for judicial review of those individuals.
But even with progress (however marginal) frustrations have grown on Capitol Hill. In an interview with the Huffington Post last week, Sen. Ben Cardin (D-Md.) criticized the White House for sidestepping transparency (code word, perhaps, for civil liberties) with regards to its handling of the fifth category.
"[The White House] should have had an open and transparent way in which those who are going to be detained indefinitely are reviewed and that there is understanding internationally and acceptance internationally that we are complying with acceptable standards," said the Maryland Democrat.
"There's been two problems [with closing Gitmo]," he added. "Not only do we not have the money, we don't have the policy. I asked the Attorney General when we were going to have the policy and we don't have it yet. Whether at Gitmo or whether in Illinois [at the replacement facility], there's got to be some type of review and transparent process. We haven't put that in place yet."
Cardin, in the end, remains relatively optimistic that the administration will find a solution to the detainee issue, a sentiment that White House officials share more confidently today than several months ago. But that of course doesn't portend Gitmo's closure. Democrats who support the shutting of the detention facility fully acknowledge that there is no momentum behind the campaign anymore, with few votes to actually spend money on an alternate facility.
"It's frustrating to me because it's iconic," said Cardin. "I was there not too long ago... I guess a third of the [detainees] are in the process of being disposed of one way or the other. So you've got a hardcore number of 50, 60, something like that, they don't know exactly what to do with them. The best thing to do is to transfer them over to this Illinois facility that's going to be build and handle them there. Illinois is prepared to do it and have a due process, transparent -- not just in America but transparent internationally -- on how these individuals are classified and remain in custody. That's what they should do. That's what the president told me he was going to do. That's what the Attorney General told me he was going to do."