The Senate appears poised to approve a measure that would bar the Obama administration from prosecuting Guantanamo detainees in the U.S.
The legislation imposes new restrictions on sending terrorism suspects to other countries, too — all but killing the only part of the White House detention strategy that's still working.
The legislative push by a Democratic-controlled Congress is only the latest trouble to befall the Obama approach to the prison camp. And activists on both sides of the political aisle are decrying lawmakers, though for different reasons.
"Congress is attempting to tie the administration's hands and prevent them from upholding the attorney general's correct decision to try 9/11 suspects in criminal courts," said Laura Murphy, who runs the Washington legislative office of the American Civil Liberties Union. "And they are trying to force these trials into very flawed military commissions."
'An Unwise Move'
The House has already approved a measure that would bar any of the 174 Guantanamo detainees from coming to the U.S. for prosecution in any kind of court, military or civilian.
Attorney General Eric Holder wrote Senate leaders earlier this month to object. He said the language represents "risky" and unprecedented meddling by Congress into the business of the executive branch.
Decisions about prosecution, Holder said, belong at the Justice Department, not on Capitol Hill.
"It simply does not make any sense to take away from the president options that he needs, options that I need to keep the American people safe," Holder told reporters at a recent news conference. "To remove from us the ability to use the Article 3 courts to try terrorists is an unwise move and puts the American people at risk."
Resettlement Plan Threatened
The defense spending bill would also make it harder to send detainees from Guantanamo to third countries, except in rare cases where U.S. judges order their release in habeas corpus proceedings.
The Bush administration shipped more than 500 detainees out of the prison with little objection. And since Obama took office, the State Department has moved 66 detainees to other countries. Diplomats have been working to resettle 33 more detainees across Europe and elsewhere.
But under the new congressional proposal, even that operation would more or less grind to a halt, at least for the next fiscal year.
Charles Stimson worked on detainee policy at the Pentagon during the Bush years and he's got some choice words for lawmakers. "They don't want to do the hard work of rolling up their sleeves and crafting what many of us have written and talked about for years — a lawful, durable detainment framework," Stimson said. "They want to simply say, 'This is not our problem and we don't want 'em here in the United States.' "
A New Law?
Stimson and others representing both political parties want the White House and Congress to work together to develop a new law — one that would clarify how to detain terrorism suspects for the long term. But he says that no one with any political power has embraced that idea and the politics could get uglier next year.
"I'm quite confident that the Republican-controlled House will hold hearings on why military commissions are the preferable venue to federal trials, probably early on in January or February," Stimson says.
Something else will happen around that time. The only detainee that the Obama Justice Department sent to New York for trial, Ahmed Khalfan Ghailani, will appear in court for sentencing on a conspiracy charge in connection with the Africa Embassy bombings in 1998.
Ghailani faces a prison sentence of 20 years to life. It's a much tougher sentence, national security experts said, than most of the men who have been prosecuted in military commissions have received.