John McCain’s markup of the annual defense authorization bill, or NDAA, includes a bipartisan compromise that could grant President Obama the authority to close the military prison at Guantanamo Bay, Cuba. But it comes with a very large asterisk: Congress first would have to approve the president’s plan for closing the facility and dispatching its 122 detainees.
“Finally, and very importantly, this legislation contains a bipartisan compromise on the issue of the detention facility at Guantanamo Bay,” the Arizona Republican told reporters Thursday after the Senate Armed Services Committee passed its markup by a 22-4 vote. “This legislation would require the administration to provide a comprehensive plan to the Congress on how they intend to close Guantanamo and all of the associated aspects.”
If that plan is approved, the SASC chairman said, Congress will grant the president the authority to close the prison.
The White House has long pointed to lawmakers’ obstruction as the reason why Obama hasn’t been able to achieve his campaign goal of closing Guantanamo. His opponents on the Hill, as noted by Sen. Jack Reed, D-R.I., SASC’s ranking member, generally retort that the president refuses to send over a plan.
But McCain, a Vietnam veteran and a former prisoner of war, has long supported closing Guantanamo. As the GOP nominee for president in 2008, it was a rare point on which he saw eye-to-eye with his opponent, then-Sen. Barack Obama. McCain has since declared that his long-awaited chairmanship of SASC is his true dream job, and he is now using the post to try and give Obama what may be his last, best chance to fulfill the promise.
“I’ve always been in favor of closing Guantanamo because of the image that Guantanamo has in the world,” he said, “Whether it’s deserved or not, Abu Ghraib and Guantanamo Bay in the minds of many throughout the world are intermingled.”
McCain and Sen. Joe Manchin, D-W.Va., cooperated to craft the Guantanamo proposal. The measure would require Obama to send over a plan for closing the prison and what he intends to do with the 122 prisoners currently held there. Of those, 57 are eligible for transfer to other countries. If Congress were to approve the plan, lawmakers would lift restrictions that forbid transferring prisoners to the United States or spending any money to build or rehab any U.S. facility to house them.
McCain described such a plan as designating a “suitable place” in the U.S. where detainees would be kept by DoD “under absolutely the same” legal conditions as they are at Guantanamo. One of the main points of opposition — which McCain said has come up in his discussions of the compromise with his House counterpart, HASC chairman Mac Thornberry, R-Texas — is a concern that if the detainees were transferred to the U.S., they would receive legal rights they do not have in Cuba. “We will make sure that’s not the case,” McCain said.
The summary says, “The bill also includes language limiting the rights and claims that could be asserted by detainees if transferred to the United States under such a plan.”
As drafted, the NDAA would also require DoD to “ensure continued detention and intelligence collection from future combatants captured under the laws of war.”
But outside of the compromise, SASC’s NDAA language would restore restrictions from 2013 that set a higher bar for detainee transfers. Those restrictions were later eased, but lawmakers who oppose the facility’s closure gained support after the Obama administration traded five Taliban detainees for former prisoner of war Bowe Bergdahl without notifying Congress beforehand, as is required by law. Even McCain and Sen. Lindsey Graham, R-S.C., who also supports closing the facility and has worked with the administration in that effort, co-sponsored legislation introduced in January with Sens. Kelly Ayotte, R-N.H. and Intelligence Committee Chairman Richard Burr, R-N.C., that would effectively freeze Guantanamo for the rest of Obama’s presidency.
“Yes, we were tougher in our legislation to make sure the president couldn’t do something like that again,” McCain said of his support for that bill. “All of these provisions will remain in place until the Congress of the United States approves — not disapproves — a plan submitted to the Congress for the closure.” The SASC NDAA summary puts it more bluntly: “If Congress does not approve the plan, nothing would change.”
Yet even if Congress were to approve the president’s plan, laws currently on the books would still require transfers to other countries to meet a high bar for approval, with the option of a national-security waiver for certain transfers.
The House Armed Services Committee’s markup of the NDAA, which the House is considering this week, contains no such compromise. It would extend current provisions — and go further, restoring the stricter language on international transfers, expanding the definition of combat zone to essentially disqualify a number of host countries for transfers and blocking DoD from ending its lease from Cuba on the land that houses the facility.
And there’s no guarantee the compromise will even survive the full Senate’s consideration of the NDAA, given adamant opposition to closing the facility from Republican hawks, including members of McCain’s own committee.
And as McCain acknowledged, even if the president sends over a plan, it would face long odds for getting approval from both chambers of Congress. But he employed several of the White House’s own arguments to defend his push.
“I believe they are aware it costs 400 and some million dollars a year to maintain Guantanamo,” McCain said of opponents. “They’re aware it’s $3.5 million per detainee, whereas if you took them and put them in a maximum-security prison in the United States, it would be around $70,000 a year per detainee. They are aware of that.”
And as he pointed out, the White House has already threatened to veto the HASC’s version of the NDAA, due in part to its Guantanamo provisions.
“When the president vetoes the defense authorization bill, it’s a very serious thing, given the impact on the ability of our military to defend the nation,” he said. “I hope that if we complete — we have to go to the floor, obviously and through conference — the proposal about Guantanamo Bay, which I am convinced is a very important proposal, that the president would be inclined to sign the bill — which we all know was the president’s commitment when he came to office in 2008.”