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The Senate passed a bill that bans moving Guantanamo Bay detainees to the United States — something Barack Obama has been trying to do since he was sworn in as president.
The Senate voted Tuesday on the $607 billion defense policy bill, which passed the House last week, 370-58.
Tuesday's Senate vote was 91-3.
The bill, which also explicitly prohibits the Obama administration from transferring Guantanamo Bay detainees to the United States or using funds to build or modify a prison in the United States to house those detainees, now goes to President Obama's desk for his signature. Many Republicans believe that even if President Obama signs the bill into law, he may still decide to move detainees from Guantanamo Bay to the United States, citing his disregard for the review period required by law before the detainee transfer that was done in exchange for the return of Sgt. Bowe Bergdahl in 2014.
The legislation has become a lightning rod for debate over whether the president needs congressional approval to move some of the remaining 112 detainees from the U.S. detention center in Cuba to the United States, or if he could do it with an executive order.
Congress has repeatedly thwarted Obama's effort to fulfill a 2008 campaign promise and close the military prison.
A Pentagon report expected as early as this week identifies prisons in Colorado, Kansas and South Carolina where Guantanamo detainees could possibly be housed so the military prison in Cuba could be shut down. That has raised the ire of lawmakers, especially those from the three states.
"Why in the world you would bring these enemy combatants to domestic soil is mind-boggling. This is absolutely nothing short of gambling national security to keep a campaign promise?" Sen. Tim Scott, R-S.C., said Monday.
White House press secretary Josh Earnest hinted last week that the president might use his executive authority to close the prison. On Monday, Earnest said the White House is focused on working with Congress to shut down Guantanamo, but he left the door open on the president taking executive action.
"I'm not aware of any ongoing effort to devise a strategy using only the president's executive authority to accomplish this goal," Earnest said. "But I certainly wouldn't, as I mentioned last week, take that option off the table."
Sen. Pat Roberts, R-Kansas., told reporters in a conference call Monday that Obama has routinely used executive action to go around the intent of Congress. Roberts has placed a hold on Obama's nominee to be the next Army secretary and has pledged to use every legislative tool at his disposal to prevent transferring detainees to the United States.
Sen. Cory Gardner, R-Colo., notes that it's currently against the law to use any taxpayer money to assist with the transfer of any detainee to the United States. He and other lawmakers say the Obama administration broke the law when it visited possible prison facilities in Kansas, South Carolina and Colorado.
Former White House counsel Gregory Craig and Cliff Sloan, Obama's special envoy for closing Guantanamo in 2013 and 2014, claim that law is unconstitutional.
The two, who advocate closing the prison, wrote an op-ed published Sunday in The Washington Post, saying the Supreme Court ruled nearly 70 years ago that Congress cannot "use its appropriations power to achieve goals otherwise beyond its constitutional authority."
They argue that while the Constitution gives Congress the power to declare war, it gives the commander in chief the "exclusive authority to make tactical military decisions." Roberts isn't convinced.
"This isn't a tactical option. This is simply moving terrorists to the United States," he said. Sen. Dianne Feinstein, D-Calif., who favors closing the prison, said she thinks Obama has the power to close the facility through executive action.
"They set it up by executive action ... so what you can build you can take apart, it seems to me," she said.
The facilities reviewed by a Pentagon assessment team were the U.S. Disciplinary Barracks and Midwest Joint Regional Corrections Facility at Leavenworth, Kansas; the Consolidated Naval Brig, Charleston, South Carolina; the Federal Correctional Complex, which includes the medium, maximum and supermax facilities in Florence, Colorado; and the Colorado State Penitentiary II in Canon City, Colorado, also known as the Centennial Correctional Facility.
In a letter to Defense Secretary Ash Carter on Monday, Kansas Republican Reps. Mike Pompeo and Lynn Jenkins asked that a delegation of federal, state and local officials from the Leavenworth area visit Guantanamo to learn how to handle the detainees.
"It will be the state and local officials who will be left to deal the predictable aftermath that comes with bringing these detainees to the Leavenworth community, such as an increased risk of terror attacks and a severe strain on our relationships with allied military commanders," they wrote. "It is critical that officials and residents have a complete understanding of what may be foisted upon them before a final decision is reached."
Obama vetoed the original defense policy bill over a larger spending issue. But that dispute was resolved, and Obama signed a bipartisan budget bill that avoids a catastrophic U.S. default and puts off the next round of fighting over federal spending and debt until after next year's presidential and congressional elections.
The defense bill was trimmed by $5 billion to align it with the budget agreement.
Among other things, the bill would:
- Provide a 1.3 percent pay increase to service members and a new retirement option for troops.
- Authorize lethal assistance to Ukraine forces fighting Russian-backed rebels.
- Extend a ban on torture to the CIA.
- Authorize the president's request of $715 million to help Iraqi forces fight Islamic State militants.