Just before Christmas, Congress passed a defense spending bill that specifically prohibits the use of defense funding to establish an alternative prison in the United States or to transfer Gitmo detainees to the U.S. And, on January 7, President Obama signed it into law.
There had been reports that some of Obama's advisors were pushing for him to issue a signing statement rejecting the Guantanamo-related provisions in the bill as intrusions on his constitutional authority. But the statement that Obama did issue amounted to little more than toothless rhetoric, criticizing the provisions and merely promising to "work with the Congress" to mitigate their effects.
And so, at this point, there is no foreseeable end to Gitmo's legacy of prisoner abuse and unfair military kangaroo court trials.
According to Human Rights Watch, this act of Congress will severely undermine U.S. efforts to fight terrorism. Tom Malinowski, the group's Washington director, explains: "The Senate vote banning the transfer of Guantanamo detainees is a reckless and irresponsible affront to the rule of law and efforts to protect the US from terrorism," said Malinowski. "By hindering the prosecution of Guantanamo detainees in federal court, Congress has denied the president the only legally sustainable and globally legitimate means to incarcerate terrorists."
From a practical perspective, Malinowski pointed out, "The congressional ban effectively prevents the president from bringing to trial those charged with the murder of thousands of Americans nearly 10 years ago... [D]etainees are now just going to sit in Guantanamo indefinitely, and as evidence grows stale, prosecution down the road is only going to become more difficult."
Obama's own Attorney General Eric Holder strongly opposed this Congressional measure. Josh Gerstein explains at Politico.com: "In a letter to the Senate leadership dated December 9, 2010, Attorney General Eric Holder warned that this provision would 'set a dangerous precedent with serious implications for the impartial administration of justice.' The Attorney General further stated that, by restricting the discretion of the executive branch to prosecute terrorists in Article III courts, Congress would 'tie the hands of the President and his national security advisers' and would be 'taking away one of our most potent weapons in the fight against terrorism.'"
Elisa Massimino, President and CEO of Human Rights First, pointed out that by keeping the detainees at Guantanamo and subjecting them to the questionable military commissions, the terrorists are winning, in a way: "The victims of 9/11 and the American public deserve to see justice done, and the best way to achieve that is by prosecuting these men in a credible criminal justice system where the focus will be on their culpability, not on the legitimacy or fairness of the proceedings. Moving these cases out of military commissions and into the federal courts [would be] smart counter-terrorism strategy. It treats the perpetrators as the criminals they are and deprives them of the warrior status they crave. This is an important distinction and [would] help thwart their ability to recruit others to their cause."
But it seems as though Congress doesn't care about practicalities in the "war on terror". They just seem to want to look tough, no matter what the cost.
And Obama just seems to want to make the other side happy, no matter what the cost.