SINCE PRESIDENT Obama vowed last May to revive his stalled efforts to close the detention facility at Guantánamo Bay, there have been small, mostly symbolic signs of progress. Obama’s State Department envoy, Washington lawyer Cliff Sloan, made a trip to the prison only hours after he was sworn in last week. Lisa Monaco, Obama’s chief counterterrorism adviser who’s spearheading the effort in the White House, has staffed up her office with Gitmo experts from the Justice Department. And last month, White House Chief of Staff Denis McDonough tagged along on a bipartisan congressional jaunt to Guantánamo, signaling that the issue was getting high-level attention and that the White House understood the need to engage lawmakers.
But the real question has always been whether Capitol Hill would be any more hospitable to the goal of shuttering the facility than it has been thus far, and whether Obama would demonstrate the political will to get it done. On both scores, advocates of closing the prison may have reason to be hopeful. The big hurdle for Obama has been getting around onerous congressional restrictions against transferring detainees out of Gitmo, including an absolute ban against sending them to the U.S. homeland. But now the Senate Armed Services Committee has approved language in the latest defense authorization that would permit the transfer of detainees to the U.S., either for medical treatment or, significantly, for detention and trial. Meanwhile, Obama may be garnering support from an unlikely quarter: Tea Party Republicans. Late last month, Sen. Rand Paul (R–Kentucky), blasted Guantánamo at a GOP event in South Carolina and implored Republicans to “stand up for our system.”
Perhaps the most important development is that the administration appears ready to act on its own authority to start repatriating some of the 166 detainees still at Guantánamo. Congress had required that the secretary of Defense certify that any prisoners transferred to their country of origin or third countries not return to the battlefield, an almost impossible standard to meet. More recently, Congress allowed the administration to waive the certification requirements so long as the secretary of Defense could “substantially mitigate” any risk that a released detainee would engage in terrorism once released. The Obama administration has never used that waiver authority. But two senior administration sources tell Newsweek that Obama is now actively considering invoking the waivers on behalf of a handful of detainees. Initially, the waivers would be used for prisoners whose home countries have a good record of safely resettling Guantánamo detainees. Among the countries who could soon start receiving Gitmo prisoners are Morocco, Algeria, and Saudi Arabia. (Transfers to Yemen, a country in the grip of an al Qaeda insurgency, would have to wait, officials say.)
Sloan, the Gitmo envoy, declined to comment on the issue of certification waivers. But he was unambiguous about the White House’s efforts to start emptying the 12-year-old military prison expeditiously. “The president was very clear about the goal of closing Guantánamo,” he told Newsweek. “We are working as hard as we can and as quickly as we can to move forward, including discussions with foreign governments on possible transfers.”
For defense lawyers who have represented detainees at the prison camp, the likelihood of the administration acting on its own represents a potential breakthrough. “This is very encouraging news,” says Thomas Wilner, who represented Gitmo clients in two landmark Supreme Court cases. “It is an important first step in closing the Guantánamo prison, which hurts our country every day it remains open.”