In the face of congressional objections to closing the terrorist detention facility at Guantanamo Bay, Cuba, the Obama administration is signaling that it might be trying its second-best option: moving the remaining prisoners overseas.
White House spokesman Josh Earnest underscored that strategy this week, pointing out that the Pentagon has signed off on transferring "more than 50" of the remaining 107 detainees and that negotiations are underway with various countries for placement.
"That means their case has been thoroughly reviewed by national security professionals and they have concluded that under the right set of circumstances, these individuals could be housed in other countries," Earnest said on Wednesday. He said that on the same day the Wall Street Journal reported that President Obama sent Pentagon planners back to the drawing board because their blueprint for closing Guantanamo and housing its remaining inmates on U.S. soil was too costly.
"And so what the State Department has done is taken these case files and entered into negotiations with countries around the world to get them to agree to take in these individuals based on the security precautions that we believe are necessary," Earnest said. "So that's the way that the process works, and that is certainly what we'll be pursuing to reduce the prison population at the prison."
Outside observers agree that moving the prisoners seems to be the strategy being pursued by the government.
"I think that they're going to unload them on other countries," legal scholar J. Christian Adams, a former Justice Department attorney.
Adams said enticing third-party countries to take detainees amounts to bribing other nations. "They usually come carrying bags of cash," Adams said.
The administration also won't send any additional suspects to Guantanamo, so every inmate it processes puts Obama that much closer to achieving his 2008 campaign promise of closing the facility.
"I would certainly rule out for you sending any additional prisoners to the prison at Guantanamo Bay … even temporarily," Earnest said.
But there are still real hurdles to Obama's apparent plan. The Guantanamo Review Task Force in 2010 deemed 48 detainees as "too dangerous to transfer but not feasible for prosecution." Since then, another 11 have been categorized as not eligible for transfer, although they are all allowed to challenge that designation and each case is reviewed periodically.
Therefore, the only way Obama can shutter the facility is to transfer any inmate still deemed ineligible for relocation to another country at the end of his presidency to U.S. soil, which Congress thus far has prevented him from doing. The administration has promised to submit a plan for closing the prison, and is required by the recently enacted defense policy bill to send up to Capitol Hill by March.
Senate Armed Services Chairman John McCain, R-Ariz., said on Wednesday that he still believes lawmakers and Obama can find a way forward.
Absent reaching a compromise with Congress on closing Guantanamo, Obama left open the option of carrying out the executive order he issued his first day in office to close Guantanamo, in a signing statement accompanying the 2016 defense policy bill.
"Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles," Obama wrote Nov. 25. To the extent the strings Congress attached subjugate his powers as commander-in-chief, "my administration will implement them in a manner that avoids the constitutional conflict," he stated.
But rather than risk another constitutional showdown now, Adams predicts the administration will process as many inmates as possible and wait until Obama's term is about to expire before end-running Congress with an executive order to close the prison.
"There's no way he's leaving office with it open," Adams said. "He's completely determined to fulfill that promise no matter what."
Obama could also choose to challenge Congress, as he warned he might, in a slightly different way. Instead of closing the prison outright, he could just try to find third-party countries to take in all the remaining inmates, Adams said.
"What's to stop him from just transferring everyone?" he asked.