By Kristina Wong - 06/29/14 06:00 AM EDT
President Obama vowed to close the detention facility at Guantanamo Bay on his second day in office, but it is increasingly unlikely he can deliver on that promise.
The president faces numerous obstacles from Congress, where lawmakers have repeatedly blocked efforts to move prisoners to U.S. soil or fund new facilities to hold them.
Obama insists he is committed to closing Gitmo, but critics say he still has no clear plan.
Republican Sen. John McCain (Ariz.), who supports closing Guantanamo, says he has been waiting since 2009.
“I’ve asked them for a plan, and they have never come up with one,” said McCain. “If they came up with a plan, they could probably do it tomorrow [but] I’ve been waiting all these years.”
At the heart of the debate is where to relocate the 149 prisoners — a mix of al Qaeda and Taliban fighters from 22 different countries, both high- and low-security risks. 78 have been cleared for release, while 38 are deemed too dangerous to free.
One option the administration is weighing is to release the Afghan detainees in Guantanamo after U.S. combat operations in Afghanistan end in December, according to officials.
The Pentagon’s general counsel at a congressional hearing this month suggested the administration has the legal grounds to do so.
"At some point, the armed conflict with the Taliban ends. And at that point, for those detainees that are being held as enemy belligerents... unless there is an additional basis for holding them, then we would no longer have that international law basis for holding them,” Stephen Preston told the House Armed Services Committee.
That legal rationale is contested, with some experts saying the U.S. could still be in “armed conflict” with the Taliban even if official combat operations end.
Preston also acknowledged there are grounds for detaining Afghan nationals beyond the war’s end.
Under the Authorization of Military Force, the U.S. can target Al Qaeda members behind the 9/11 attack, as well as allied forces.
“It has been suggested that the Taliban may also be candidates to be held as associates of Al Qaeda as the conflict with Al Qaeda continues,” Preston told lawmakers.
“At this stage, we are discussing this issue and look forward to engaging the Congress more robustly as our thinking progresses,” said National Security Council spokeswoman Caitlin Hayden.
Any such move would face stiff opposition from GOP lawmakers who fear freed detainees will return to the fight. The five Taliban in the Bergdahl trade are under watch in Qatar, but one has already pledged to again take up arms.
Repatriation remains an unlikely prospect for detainees from Yemen, who represent the largest population at Gitmo, numbering 87.
The U.S. has been fighting Al Qaeda in the Arabian Peninsula, a group with a firm foothold in Yemen. Al Qaeda forces there have regularly attacked prisons to free fellow fighters who quickly returned to the battlefield.
The anger over Bergdahl though now makes any effort by Obama to shift detainees difficult.
The House passed a measure this month barring any detainee transfers from Guantanamo for the next year in protest. Similar legislation is unlikely in the Senate now, but that could change if Republicans seize control of the upper chamber in the midterms.
And the process for transferring even low-level detainees is still hampered with delays. The administration cleared four “low-level” Afghan nationals for repatriation in February but they are still awaiting Defense Secretary Chuck Hagel to sign off, according to the New York Times.
Obama has managed to avoid adding to the detainee population at Gitmo, insisting that new terror suspects will be tried in federal court. On Saturday, Ahmed Abu Khattala, the suspected mastermind behind the Benghazi attack, arrived in Washington to face charges.
“The administration’s policy is clear on this issue: we have not added a single person to the GTMO population since President Obama took office,” said Hayden after his capture.
The president though must still decide where to keep some prisoners in U.S. custody in Afghanistan, captured during the war. A defense official said the U.S. is working with allies to “determine the most appropriate disposition of the third country nationals remaining in our charge.”
GOP lawmakers want those detainees brought to Gitmo. “We should have a game plan for Afghan detainees, and some of them should come to Gitmo. There’s a group that I don’t think we can leave behind in Afghanistan,” said Sen. Lindsey Graham (R-S.C.).
Some Democratic senators say privately there isn’t enough support for the president to close Gitmo, with so many questions unresolved. Others remain hopeful, noting that the detainee population has dwindled over the years.
“There are 78 people there that are cleared for transfer, out of a total of about 149. So bit by bit, the population will get winnowed down,” said Sen. Dianne Feinstein (D-Calif.). “And I think from the Democratic side, there is very strong support to close Gitmo.”
But she acknowledged the difficult path ahead.
“I know the president’s going to persevere, whether we get there or not, remains to be seen, but I think the effort will continue,” said Feinstein. “It deserves to continue.”