In a strange twist of history, Congress, through its control of government funds, is now imposing curbs on the very executive powers that the Bush administration invoked to establish the camps at Guantánamo in the first place. Much of its intransigence is driven by the politics of fear: What if, for example, a captive is acquitted in a civilian trial because the judge bars evidence obtained by the military without benefit of counsel? When will another freed Guantánamo detainee attack a U.S. target or interest, such as when Abdullah al Ajami, who was transferred to Kuwait in 2005, blew himself up in a truck bomb attack in Iraq in 2008?
In the face of such public and political pressure especially from Congress Obama administration officials have waffled at several key moments. For example, Attorney General Eric Holder changed his mind on where to try five alleged 9/11 plotters at Guantánamo, including Khalid Sheik Mohammed. In November 2009, Holder announced that the trial would be held in a civilian courtroom in Manhattan; then, in April 2011, following strong resistance from congressional representatives and New York politicians, the White House abandoned this plan and instead announced that Pentagon prosecutors would bring a trial by military commission.
Resettling in the United States those captives cleared for release has also become taboo. Soon after taking over in 2009, the Obama administration was considering resettling Guantánamo captives from Chinas Uighur Muslim minority, whom the Bush administration had readied for release. (They were to be hosted by Uighur-Americans in Virginia.) But then, in the face of congressional objections, the White House lost its nerve. The United States instead scattered the Uighurs to Bermuda, Switzerland, and even the Pacific island nation of Palau; five more Uighurs remain at Guantánamo.
Factors besides Congress also contributed to the current Guantánamo stalemate. First, the Defense Intelligence Agency concluded that at least a fourth of the detainees the United States has released from Guantánamo were confirmed or suspected of later engaging in terrorism or insurgent activity. Opponents of closing Guantánamo immediately seized on these figures. (For its part, the Obama administration noted that most of those on the recidivist list were transferred before Obama took office, when the Bush-era Pentagon approved some 500 releases. Officials took fault with these big-batch transfers and claimed that the Obama administrations individually fashioned, case-by-case system for release would yield better results.)
Second, over the past couple years a powerful al Qaida offshoot has taken hold in Yemen, the very country where the Obama administration had planned to transfer many detainees. Sending dozens of suspected terrorists back to a country besieged by a growing terrorist threat is hardly good politics or security policy.
Lastly, Obamas executive order to close Guantánamo was undone by the burdensome bureaucracy of the task force, which sought to sort each captives Bush-era file. Each detainees case file contained competing and often contradictory assessments from the Defense Intelligence Agency, the Pentagons Office of Military Commissions, the Department of Justice, and myriad other offices, bogging down the review process. Time ran out before the task force could settle on a master plan to move the detainees out of Guantánamo in time for Obamas one-year deadline.