The push for a new war authorization to fight the Islamic State group does nothing to change the 2001 fight against al Qaeda, leaving the detention facility at Guantanamo Bay open and meaning President Obama’s successor could refill the prison he has rapidly been emptying.
Mr. Obama called for repealing the 2002 resolution authorizing war in Iraq but wants to leave the 2001 authorization passed in the wake of the Sept. 11 attacks intact, meaning the U.S. is still formally in combat and the prison can remain operational.
The Obama administration has moved to depopulate the prison and transferred 20 detainees in December and January. With 122 remaining, though, it’s unlikely he will close the facility by the time his term ends.
“President Obama is only going to be in office for two more years. You can never predict what his successor may do,” said David Remes, a human rights lawyer who represents 18 Guantanamo detainees. “The policy is only as firm as the president who adopted it.”
Mr. Obama asked Congress last week to approve a three-year authorization to take military action against the Islamic State, meaning it will cover the first year of the next president’s term. The draft specifically called for repealing the 2002 authorization but didn’t touch the 2001 authorization, even though Mr. Obama said it needs to be repealed or revised.
A revision, however, would set up a tricky legal battle over the fate of the detainees still at the prison.
Shoon Murray, a professor at American University who wrote “The Terror Authorization: The History and Politics of the 2001 AUMF,” said the 2002 authorization doesn’t affect Guantanamo because none of the detainees was captured on the battlefield in Iraq. All were caught as part of the fight against the Taliban and al Qaeda in Afghanistan and the broader war on terrorism, which are part of the 2001 authorization.
“Guantanamo Bay is certainly a difficult issue. It’s something you’d have to address if you repealed 2001 AUMF,” Ms. Murray said.
Two Democratic senators introduced a bill last week that would sunset the 2001 authorization in three years. Sens. Christopher Murphy of Connecticut and Benjamin L. Cardin of Maryland said the authorization from more than a decade ago “did not authorize a perpetual war.”
A spokeswoman for Mr. Cardin said the bill “allows sufficient time, three years, for the president and Congress to find a sustainable solution that will allow Gitmo to close its doors.”
Ms. Murray said there isn’t any precedent for what would happen to detainees if the 2001 authorization is repealed because the resolution is the strongest case for continued detention.
Mr. Remes said it’s unlikely the U.S. will take any prisoners while battling the Islamic State because a large U.S. ground presence isn’t expected and allied armies in the region probably won’t hand over detainees to Americans.
If prisoners of war are taken, Mr. Remes said, the administration likely will try them in U.S. courts on federal criminal charges. Mr. Obama has said he won’t send any more prisoners to Guantanamo.
“With or without the authorization, he could claim the power to send captives to Guantanamo, but I think that this administration has rejected that model for any number of reasons,” he said. “I believe that the circumstances that gave rise to Guantanamo are very unlikely to occur, and Guantanamo is likely to prove to have been a one-off.”
Republicans have resisted the president’s promise to close the prison, saying enemies should not be released while the country is at war. They say released detainees could rejoin the fight and American troops could face militants they’ve already captured.
Asked whether another war authorization would strengthen this argument, Mr. Remes said a bigger threat to closing the prison is a bill from Sen. Kelly Ayotte, New Hampshire Republican, that passed out of the Senate Foreign Relations Committee last week.
The bill would essentially end all transfers during the remaining years of Mr. Obama’s presidency by tightening transfer rules, ending all transfers to Yemen, extending a ban on transfers to the U.S. and prohibiting any transfer of medium- and high-risk detainees.
Ms. Ayotte and other Republican sponsors have said that, especially in the wake of terrorist attacks in Europe, it’s irresponsible to empty the prison without a clear strategy of ensuring that the detainees don’t hurt Americans or allies after their release.
She said she was told that the bill could get a vote in the full Senate soon. No Democrats supported the legislation in committee.
Though the president has vowed to veto the bill if it passes, “I think if it goes through as a free-standing bill, that is a credible threat,” Mr. Remes said.
• Jacqueline Klimas can be reached at jklimas@washingtontimes.com.
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