President Obama's decision to suspend sending any detainees being held in the Guantánamo Bay detention facility back to Yemen was "politically, a no-brainer," a senior administration official tells NEWSWEEK.
But the move will do more than complicate Obama's commitment to shut down the base: it has raised new questions about whether the facility will be shuttered at all, at least in the first term of Obama's presidency.
"I'm beginning to think that Guantánamo is not ever going to be closed," says John Bellinger, the top State Department lawyer under former secretary of state Condoleezza Rice and a persistent advocate of shutting down the facility. Given the current political obstacles, "I would bet some money that it's not going to get closed in the Obama presidency."
"To some extent, I think the administration has blown it," adds Marc Falkoff, a lawyer who represents some of the Yemeni detainees at Gitmo. "It has delayed, and they've gotten themselves into a reactive state and you can't get anything done when you're reacting to political winds . . . It looks like Guantánamo will be around for the foreseeable future."
Publicly, of course, Obama is sticking to his pledge—made during the first full day of his presidency—even if officials acknowledge they will no longer come close to meeting his original deadline of shutting it down by later this month. Given the importance he attached to his original announcement, and the enormously positive worldwide response it generated, it would be "unthinkable" for the president to publicly admit he won't be able to close the prison, says Tom Malinowski of Human Rights Watch, who served as an adviser to the Obama campaign on Guantánamo matters.
"Make no mistake: we will close Guantánamo prison, which has damaged our national-security interests and become a tremendous recruiting tool for Al Qaeda," Obama said Tuesday right after he announced he was stopping further transfers to Yemen.
But the new pessimism is the result of a confluence of unanticipated developments, all of which relate to Yemen, a country that is home to about 92 Guantánamo detainees, nearly half the facility's current population of 198.
Among those: the surge in attacks by Al Qaeda in Yemen, the media's intense focus on the role that former Guantánamo detainees (released by the Bush administration) are playing in the group, and the alleged Christmas Day bombing attempt by a Nigerian student who immediately told authorities he had been trained and equipped for his mission by Qaeda operatives in Yemen.
The senior Obama administration official (who requested anonymity because of the political insensitivities) says that "security concerns" along with congressional politics prompted Obama's phone call to Attorney General Eric Holder this week in which he directed that further transfers to Yemen be halted.
But a key development, little noticed by the national news media but a small bombshell inside the White House, was a statement issued by Democratic Sen. Dianne Feinstein, chairman of the Senate intelligence committee, last Tuesday stating that Yemen was now too "unstable" for any more Guantánamo transfers and calling on the president to suspend them, according to another senior administration official.
Once the White House had lost Feinstein, who had previously sponsored legislation to close the base, officials realized they had little hope of sustaining any transfers back to Yemen.
The original analysis—offered by the second senior administration official—is that blocking more transfers to Yemen won't necessarily affect the Guantánamo closure because it will simply mean more of the detainees will be moved to the new facility that the administration wants to build in Thomson, Ill. The proposed population for that transfer, which officials once had hoped to hold into the dozens, will now almost certainly swell to more than 100, the administration official says.
But "numbers matter," says Malinowksi. Moving more than 100 detainees—the vast majority of whom would end up being held without charge—to a U.S. facility that is already being dubbed "Gitmo North" will blunt the positive message Obama hoped to send by shutting Guantánamo in the first place, he says.
But the more serious question for the White House is whether Congress will even allow the transfers to take place at all. The administration is already blocked from moving any Guantánamo detainees to the U.S. for purposes other than putting them on trial. That's the result of a rider to a congressional appropriations bill that passed overwhelmingly last spring and which expires Sept. 30.
In order to move the Yemenis and other Gitmo detainees to Thomson, the administration needs to persuade the Congress to lift the rider—in an election year, no less—a much more difficult task when the proposal is to move more than 100 detainees to the U.S. rather than 20 or 30.
Already, moderate GOP Rep. Mark Kirk, the likely Republican nominee in next year's Illinois Senate race, has taken an increasingly hard line on the transfers, saying they would make Illinois "ground zero for jihadist terrorist plots."
Part of Bellinger's reluctant calculation that Gitmo will stay open is that there is little chance in the midst of the 2010 midterm election campaign that Congress will lift the rider to permit detainees to be moved into the U.S. If Republicans make big gains in the fall elections, as many analysts now predict, the odds of lifting the anti-Gitmo rider would become even steeper.
But the final irony is that many of the detainees may not even want to be transferred to Thomson and could conceivably even raise their own legal roadblocks to allow them to stay at Gitmo.
Falkoff notes that many of his clients, while they clearly want to go home, are at least being held under Geneva Convention conditions in Guantánamo. At Thomson, he notes, the plans call for them to be thrown into the equivalent of a "supermax" security prison under near-lockdown conditions.
"As far as our clients are concerned, it's probably preferable for them to remain at Guantánamo," he says.