Senate Military Bill Passes: Prohibits Gitmo Transfers

The Senate passed the annual NDAA today. (National Defense Authorization Act.) It prohibits the transfer Guantanamo detainees to the U.S. The vote in the Senate was 91 to 3. Obama is expected to sign the bill, notwithstanding his objection to the Gitmo provision.

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    Good for Sanders! (5.00 / 3) (#1)
    by lentinel on Tue Nov 10, 2015 at 05:55:37 PM EST
    One of the three to vote against this bill.

    The vote in the Senate - 91 to 3.

    And Obama set to sign it...
    The tower of jelly...

    Some two party system we have...

    Sanders has guts.
    And, of course, "he can't win"....

    What Was the Reason He Gave? (none / 0) (#4)
    by RickyJim on Wed Nov 11, 2015 at 09:18:28 AM EST
    Three senators -- Jeff Merkley and Ron Wyden, both Democrats from Oregon, and Bernie Sanders, an independent from Vermont -- voted against the defense bill.

    GOP Sens. David Vitter of Louisiana and Dean Heller of Nevada and Republican presidential candidates Marco Rubio of Florida, Rand Paul of Kentucky, Lindsey Graham of South Carolina and Ted Cruz of Texas did not vote.


    The fear-based reaction in this Congress, (5.00 / 1) (#2)
    by christinep on Tue Nov 10, 2015 at 06:53:23 PM EST
    while not unexpected, is unfortunate.  That said, what is the alternative for a President in a democracy in such a clear, lop-sided vote situation other than what the President is doing?  After all, it is a democracy ... and, the vote was 91 to 3 ... Presidents do have to deal with the reality of how the its citizenry feels ... rightly or wrongly.

    Yeah... (5.00 / 1) (#3)
    by ScottW714 on Wed Nov 11, 2015 at 08:51:45 AM EST
    ...if there was only some sort of mechanism for the president to use to keep a bill form becoming a law...

    It's not like he campaigned on the issue or anything.  I guess we should just be happy the ACA didn't land on his desk for repealing.  What a pity it would be for our hapless leader to have repeal his signature legislation due to majorities in Congress.

    Sometimes majority does not equal doing the right thing, but hey, who cares about a bunch of brown people in Cuba violating the Constitution.  He's got hands to shake across the aisle.


    Agree, but.... (5.00 / 1) (#5)
    by christinep on Wed Nov 11, 2015 at 10:44:16 AM EST
    There is more than a semantic difference between a closely divided/somewhat divided Congress (e.g., ACA) and a Congress that is unanimous/near unanimous in its opposition.  Practically, realistically, this is where philosophy and government leadership may not align ... this is where the one-year-left in an Administration argues strongly for allocating one's personal resources as a President to those remaining important issues that need to be done during your tenure.

    Look ... I agree in theory & purpose, but the "snowball's chance in he$$" situation that the President would face here is more than overwhelming.  Rightly or wrongly.


    He Gave Up the First Chance He Had... (5.00 / 1) (#6)
    by ScottW714 on Wed Nov 11, 2015 at 11:36:45 AM EST
    ...by asking Congress for permission for the Commander in Chief to move POW's.  It was absurd for him to ask permission, he is the head of the military and doesn't need anyone's permission to move prisoners of war.

    Allocation one's personal resources ?  Huh, vetoing a bill for something he championed doesn't seem like a whole lot of resources tied up.  What exactly is the the GOP giving Obama for not vetoing this bill ?

    Your statement implies that he is doing it for some higher purpose, which is understandable if they was even a hint of cooperation from the GOP.  Just another give them what they want in hopes that they will return the gesture that has mired this admin.

    He is doing it for convenience, he has given up or doesn't care, or what I suspect, just used it as some talking point to garner liberal votes.  

    It's depressing to read someone apologize for something so important.


    Well, there's that whole thing about (none / 0) (#7)
    by jbindc on Wed Nov 11, 2015 at 12:13:50 PM EST
    A sure lose on a veto override vote and then we are back in the exact same position we are in today, but with the president looking weaker.

    That and the bill includes a (small) pay increase for members of the military and extends a ban on torture to the CIA, for example.  You wanna be the PR person that has to defend "Obama killed pay raises for service members," or "the CIA is not covered by anti-torture provisions"?

    Even if Obama wants to take executive action, one of the things he would have to do would be to identify prisons that are receptive to take the remaining prisoners, and while sites have been identified, lawmakers in those states have basically said, "Hell, no.". And since he just lost a huge court challenge this past week on his executive actions on immigration, he may not want another fight.


    jbindc: You said it very well (none / 0) (#8)
    by christinep on Wed Nov 11, 2015 at 12:35:24 PM EST
    Scott seems to think <in his comment above> that I have suggested there is a "higher purpose" for the President's acceptance of Congress' near-unanimous vote here ... as you make clear, it is practicality & reality that necessarily drive the President's decision here.  The resources to which I referred earlier mean the wasted effort that the President and his Administration would have to engage in to go nowhere.  Thanks for making that abundantly clear.

    In addition to your analysis of the likely message-consequences of a veto here, the circumstances in the violent Mideast these days would caution against a tilting-windmills action via veto. That posture could be (would be) viewed as a defense weakening action should a new crisis erupt involving us and the Mideast because we would be without a defense authorization.  (BTW, as the DenverPost point out today: A bravado veto action would be ill-timed now since the earlier disputed $$$$ amount for the authorization was amended by Congress to reflect the President's request.)

    While progress has been made in reducing the number of detainees at Guantanamo from about 600 to 100+, I do share Scott's disappointment that the facility would not be closed.  Yet, like you are apparently doing, I've ceded to today's reality in order to focus on what is doable in the later months of the Administration.    


    FWIW (none / 0) (#12)
    by ScottW714 on Thu Nov 12, 2015 at 11:11:36 AM EST
    Obama doesn't need Congress to close Guantánamo - so what's keeping him?

    Just as the Obama administration is finally about to release its long awaited plan to "close" the scourge on our country known as the Guantánamo detention facility this week, Congress has cowardly voted to bar the transfer of any of its inmates to the United States. But don't just blame Congress for this impasse - the Obama administration is just as guilty for keeping one of the world's most effective terrorist recruiting tools open more than six years after vowing to close it.

    It's hard to list all of the incidents of censorship and violations of constitutional rights that have taken place under the Obama administration in regards to Guantánamo detainees, along with the many opportunities the White House has had to facilitate the closing of the prison but has declined.

    So how does this end? Well, two former Obama administration officials argued in the Washington Post that these challenges need not stand in Obama's way. They argue that the president has the power to close it himself without approval from Congress. He's had this power for years, and has continually failed to use it. (This has always been one of the infuriating problems with Obama's view of executive power - he claims unlimited amounts when he really wants to do something, and claims he's powerless and that his hands are tied by Congress when he doesn't.)

    Unfortunately, like the wars in Iraq and Afghanistan, it's increasingly looking like Obama's vow to end one of the Bush administration's most damaging legacies will actually live on as his own.

    I get it, brown men locked in a hole in another country isn't really a priority, nor is the constitution, so why bother standing up what is right, the easy road is just so much smoother.


    An important qualifier, Scott (none / 0) (#13)
    by christinep on Thu Nov 12, 2015 at 11:31:49 AM EST
    The President certainly has the executive authority to which you refer.  But ... Congress has the authority to fund or not fund any actions resulting. Even closures require funding .... A practical point.

    And a Democratic Presidential power reach (5.00 / 1) (#16)
    by Militarytracy on Thu Nov 12, 2015 at 01:54:18 PM EST
    Of that magnitude could really damage the next Democratic candidates chances, particularly if they had a history, an easily observable record, of being on the same page 99.9% of the time :)

    This article (none / 0) (#14)
    by jbindc on Thu Nov 12, 2015 at 12:46:41 PM EST
    Kind of glosses over some of the challenges - like your argument about the Constitution not being a priority.  It's not that it isn't a priority, but there actually isn't a clear constitutional answer, as much as we may wish it.

    If transferred to the United States, detainees may be able to seek judicial review over a broader range of actions taken against them. Besides eliminating detainees' access to habeas corpus review, the DTA and MCA stripped federal courts of jurisdiction to hear most claims by noncitizen detainees. Specifically, federal courts are denied jurisdiction over "any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment,
    trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

    Although the Boumediene Court held that the constitutional writ of habeas permitted Guantanamo detainees to challenge the legality of their detention, the Court declined to "discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement." Because the Boumediene Court left these questions unresolved, the viability of measures stripping courts of jurisdiction to hear claims regarding the conditions of detention may depend upon a reviewing court's interpretation of the constitutional protections owed to detainees. While measures that eliminate detainees' ability to pursue statute- or treaty-based challenges to aspects of their detention may be deemed permissible by a reviewing court, measures that seek to eliminate (rather than merely circumscribe) detainees' ability to bring constitutional challenges regarding the circumstances of their detention would likely be subject to serious legal challenge. Although the scope of constitutional protections owed to Guantanamo detainees remains a matter of legal dispute, it is clear that the procedural and substantive due process protections of the Constitution apply to all persons within the United States, regardless of their citizenship. Accordingly, detainees transferred to the United States might be able to more successfully pursue legal challenges against aspects of their detention in the United States that allegedly infringe upon constitutional protections owed to them.


    While many persons currently held at Guantanamo are only being detained as a preventive measure to stop them from returning to battle, the United States has brought or intends to pursue criminal charges against some detainees. Various constitutional provisions, most notably those arising from the Fifth and Sixth Amendments to the U.S. Constitution, apply to defendants throughout the process of criminal prosecutions. Prosecuting Guantanamo detainees inside the
    United States would raise at least two major legal questions. First, does a detainee's status as an enemy belligerent reduce the degree of constitutional protections to which he is entitled?

    Secondly, would the choice of judicial forum--that is, civilian court, military commission, or court-martial--affect interpretations of constitutional rights implicated in detainee prosecutions?

    As previously discussed, the nature and extent to which the Constitution applies to noncitizens detained at Guantanamo is a matter of continuing legal dispute. Although the Supreme Court held in Boumediene that the constitutional writ of habeas extends to detainees held at Guantanamo, it left open the nature and degree to which other constitutional protections, including those relating to substantive and procedural due process, may also apply. The Boumediene Court noted that the Constitution's application to noncitizens in places like Guantanamo that are located outside the United States turns on "objective factors and practical concerns." The Court has also repeatedly recognized that at least some constitutional protections are "unavailable to aliens outside our geographic borders." The application of constitutional principles to the prosecution of aliens located at Guantanamo remains unsettled.

    On the other hand, it is clear that if Guantanamo detainees are subject to criminal prosecution in United States, the constitutional provisions related to such proceedings would apply. The application of these constitutional requirements might nevertheless differ depending upon the forum in which charges are brought. The Fifth Amendment's requirement that no person be held to answer for a capital or infamous crime unless on a presentment or indictment of a grand jury, and the Sixth Amendment's requirements concerning trial by jury, have been found to be inapplicable to trials by military commissions or courts-martial. The application of due process protections in military court proceedings may also differ from civilian court proceedings, in part because the Constitution "contemplates that Congress has `plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations,
    procedures, and remedies related to military discipline.'" In the past, courts have been more accepting of security measures taken against "enemy aliens" than U.S. citizens, particularly as they relate to authority to detain or restrict movement on grounds of wartime security. It is possible that the rights owed to enemy belligerents in criminal prosecutions would be interpreted more narrowly by a reviewing court than those owed to defendants in other, more routine cases, particularly when the constitutional right at issue is subject to a balancing test.

    Shorter version:  there is no clear cut rule that says the detainees, as non-citizens who are not on American soil, enjoy all the constitutional protections that would attach the moment they come here.  There's still many legal arguments either way, but it hasn't been resolved (and the author of The Guardian piece gets a few things wrong, and the Op-ed in the Washington Post to which he points, written by former a WH counsel and special envoy to Guantanamo) make compelling legal arguments, but not ones that are absolute.



    Exactly JB... (5.00 / 1) (#19)
    by ScottW714 on Thu Nov 12, 2015 at 03:02:30 PM EST
    ...though I mentioned above about not caring about the constitution.

    The idea that everyone seems to be fine with, not giving them any rights, seems to be lost on almost everyone.

    Everything in that article is why they need to be brought to US soil, so they can treated like human beings who have rights, like the Constitutions ensures.

    For the record, the same powers that put them there are the same powers that can get them out.  The president doesn't need Congress to approve moving POW's, and the funds that the military has, cover moving 100 people anywhere, they certainly would cover moving 10,000 troops to Iraq, but somehow they don't cover moving POW's 90 miles off the coast.

    Rationalization has no bounds today.


    Actually, I guess I wasn't ckear (none / 0) (#20)
    by jbindc on Thu Nov 12, 2015 at 03:56:28 PM EST
    My point was specifically opposite of what you think - the Constitution specifically does NOT ensure the prisoners enjoy the same rights as you and me. It's murky law at best.

    And they are FORBIDDEN BY LAW from using money to move them, even if they have it, so there's that.

    You are arguing an absolute moral and ethical point, but the legal arguments are not as solid as you think they are (or should be). They are different arguments.

    For the record (and I know I've said this before), this was the biggest reason I knew I couldn't support Obana.  As soon as he made his "I'll close....within a year..." I knew for certain he had no clue about the job he was (trying) to get into, because even though it was pooh-poohed, I believed that experience matters.


    I Knew What The Point... (none / 0) (#21)
    by ScottW714 on Thu Nov 12, 2015 at 05:07:58 PM EST
    ...you were making was, and my point is if we get them on American solid then they can be treated like pre-9/11 POW's.

    The only reason to keep them there is skirt the Constitution and deny people we are detaining trials.  That is wrong on so many levels.

    Like I said above, the powers that put them in GITMO are the same powers that can get them out.  This isn't a matter of believing Obama, it's about right and wrong, we have a document that everyone is suppose to abide by, yet for GITMO detainees, no go, sorry, but we decided there is a place on Earth in which Americans can lock up anyone without a trial and treat them anyway we feel is necessary.

    I might not get the legalize of all of it, but I know right and wrong, and this is wrong, wrong, wrong.


    Exactly (none / 0) (#15)
    by Militarytracy on Thu Nov 12, 2015 at 01:50:11 PM EST
    And I don't like it, but it's the political reality. Few individuals in Congress can afford that vote even though the President now can.

    He can always act in December 2016. (5.00 / 4) (#17)
    by caseyOR on Thu Nov 12, 2015 at 02:40:37 PM EST
    Obama can close Gitmo down by Thanksgiving of next year if he wants. The election will be over. And the incoming president, be it Hillary or Bernie, can thank him for taking Gitmo out of the mix for them.

    This is what he should do (none / 0) (#18)
    by CST on Thu Nov 12, 2015 at 02:41:41 PM EST
    Hopefully it's exactly what happens.

    Pardon them all. (5.00 / 3) (#9)
    by Chuck0 on Wed Nov 11, 2015 at 03:13:37 PM EST
    Let them go and close the facility. Problem solved. The bill only prohibits transferring them to the US. Doesn't say anything about letting them walk. True, they haven't actually been, gee, CONVICTED, of anything, but what the hey, Ford pardoned Nixon without him being convicted of anything.

    What is really needed IMO is getting the Gitmo (5.00 / 2) (#10)
    by ruffian on Wed Nov 11, 2015 at 04:05:53 PM EST
    issue out of the overall defense authorization bill. Maybe it is just wishful thinking, but the vote would not be so lopsided if that happened. But of course that is the point - combining it with something that is hard to vote against or veto.

    I can't claim to know the exact percentage (5.00 / 1) (#11)
    by Mr Natural on Wed Nov 11, 2015 at 05:57:19 PM EST
    of bad ideas that make it into law this way, but it's pretty high.  Same with pork.  It gets piled into any must-pass bill.