In January 2009, President Obama issued an Executive Order demanding the close of Guantanamo Bay Naval Base within one year. Though, this order has had a number of setbacks, with the most recent coming last Friday when the President signed the 383-page Defense Authorization Act for Fiscal Year 2011 [.pdf]. The central goal of this law provides funding for military operations, but there are two provisions within the law that complicate the closure of Guantanamo Bay.
More specifically, Section 1032 prevents any funding for the transfer of detainees from the detention facility in Cuba to any facility in the United States. Section 1033 prevents any funding for the transfer of Guantanamo detainees to any foreign entity unless six extensive requirements are met. These six requirements in Section 1033 can be found on page 215 of the law and are:
- The foreign entity is not a designated state sponsor of terrorism.
- The foreign entity maintains effective control over its detentions facilities.
- The foreign entity is not facing a threat that affects its ability to maintain control over the detainee.
- The foreign entity agrees to take effective steps to prevent the detainee from taking action to threaten the US or its allies in the future.
- The foreign entity agrees to take any steps as the Secretary of Defense determines as necessary to ensure the individual cannot engage in any future terrorist activity.
- The foreign entity agrees to share any information with the US that is related to the detainee or could affect the security of the US or its allies.
Clearly, the certification process for the transfer of any detainee to a foreign entity would require a considerable amount of time. Moreover, the foreign entities that meet these requirements are reluctant to receive Guantanamo detainees. Therefore, with this stringent certification process, as well as the prohibition of funding for the transfer of detainees to any facility in the US, a closure of Guantanamo Bay is not in the near future.
However, when President Obama signed the Defense Authorization Act last Friday, he also released a signing statement with the law. On a side note, a signing statement is a unique device that allows a President to discuss how he interprets certain provisions of a law and whether these provisions would interfere with his constitutional duties as the President. Each President beginning with Ronald Reagan has regularly used signing statements to announce the Executive Branch will not enforce specific provisions of a law the President interprets as unconstitutional.
In President Obama’s signing statement released last Friday, he announced his “strong objection” to Sections 1032 and 1033 of the Defense Authorization Act. Further, the President said these provisions involve a “dangerous and unprecedented challenge to his authority” and that “interests of national security demand a swifter process than what these provisions entail.” Despite these objections, the demand to provide funding for military operations urged him to sign the bill.
While the Obama Administration will work to “mitigate” the effects of Sections 1032 and 1033, there are still 178 Guantanamo detainees who are awaiting transfer. As a result, Guantanamo Bay will remain open at least until the end of fiscal year 2011 in September, and likely beyond the election cycle of 2012 – over three years after the deadline the President originally ordered.