In recent months, President Obama has repeatedly sought to make it clear that he is adamant in his desire to close the prison at Guantánamo Bay. In late April, when asked at a press conference about the growing hunger strike taking place among prisoners there, he said that the prison “needs to be closed” and that he was going to renew the effort to shut it down.

Since then, there has been some momentum toward this end. In his May 23 speech at National Defense University, Obama announced that he would lift the moratorium on detainee transfers to Yemen, thus clearing the way for Yemeni detainees—who make up roughly a third of the Guantánamo population—to have their cases reviewed on a case-by-case basis. He further announced that he would appoint new senior envoys at both the State and Defense Departments “whose sole responsibility will be to achieve the transfer of detainees to third countries.” The first of these envoys, lawyer Clifford Sloan, was
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The administration’s plan has long involved freeing some detainees, prosecuting some and transferring some to jails in other countries. But there is still a group of detainees that represents the thorniest problem—those who the administration believes are too dangerous to release yet also cannot be prosecuted due to insufficient or compromised evidence. In his speech, Obama mentioned this problem but essentially waved it off, saying that “once we commit to a process of closing GTMO, I am confident that this legacy problem can be resolved, consistent with our commitment to the rule of law.”

Yesterday, we learned the exact number of detainees that fall in this category. The Miami Herald published a 2010 document that outlined a government task force’s plan for dealing with each of the individual detainees in Guantánamo. It revealed that forty-six of the 166 prisoners fell under the rubric of “indefinite detainees.”

Meanwhile, congressional Republicans remain staunchly opposed to Obama’s efforts to close the prison, with leading members in both chambers denouncing that aspect of his NDU speech. And last week, in its version of the 2014 defense authorization bill, the House of Representatives voted along party lines to adopt an amendment that prohibits the Defense Department from using funds to transfer detainees to Yemen. Like previous authorization bills, the bill also “included restrictions on moving detainees to U.S. soil or to build facilities in the U.S. for detainees.”

So, here we are: four years after Obama’s initial attempt to shutter the facility that Paul Pillar rightly calls America’s “national disgrace,” the political path to closing it remains as unclear as ever. Moreover, even if the administration manages to overcome congressional opposition, the practice of indefinite detention that is Guantánamo’s hallmark will continue. It will simply be for forty-six people instead of over a hundred, to be held at a different facility. In his NDU speech, the president outlined why this issue matters:

Imagine a future—10 years from now or 20 years from now—when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country. . . . Is this who we are? Is that something our Founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that.

These are noble words. But what they leave out is that under his administration’s own stated plans, we would still be doing almost exactly that—holding people indefinitely without ever charging them with a crime. The only difference would be the location.