The Obama administration has loudly opposed a provision of the omnibus spending bill, passed last week by the House, that would ban the transfer of Guantanamo Bay detainees to U.S. soil, even for trial.
"This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States," Attorney General Eric Holder wrote in a letter to Senate leadership, calling the provision "dangerous" and asking that it be stripped before the Senate votes on the bill this week.
"We strongly oppose this provision. Congress should not limit the tools available to the executive branch in bringing terrorists to justice and advancing our national security interests," White House spokesman Reid Cherlin said just before the bill passed.
So you would think, then, that this was perhaps a provision snuck into the must-pass government funding bill by Republicans intent on derailing Holder's plan to try self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed in civilian criminal court.
You'd be wrong.
According to sources on both sides of the House Appropriations Committee, which had purview over the legislation, the bill was written entirely by the Democratic side. It was revealed to Republicans only hours before the vote. No amendments were allowed on the House floor. No Republicans voted for it.
And, the committee sources said, the White House would have seen the final package — including the transfer ban — and would have had the chance to object.
The White House did not respond to requests for comment.
Republicans have tried to put similar language in a slew of bills over the past year, and succeeded in doing so via a defense funding bill that passed the House in May but died in the Senate. A similar provision also appeared in last year's spending bill, which expired in October at the end of the fiscal year.
Although leadership and the White House oppose the provision, it's had support from some Democrats. In October 2009, for example, 24 Democrats voted for a provision to ban the transfer of Gitmo detainees to the U.S. for prosecution or incarceration. Thirteen of those voted for last week's bill — which passed by just six votes, 212 to 206.
House Republican leadership, for their part, believes the measure doesn't go far enough because it doesn't ban the transfer of detainees to other countries.
"Considering the press reports regarding the recidivism rate of released or transferred detainees, House Republicans are strongly disappointed and will be addressing this issue in the 112th Congress," said Minority Leader John Boehner's spokesman, Michael Steel.
Senate leadership, including a spokesman for the Senate Appropriations Committee, would not say whether the provision will be included in its version of the spending bill. The Senate is expected to vote before Saturday, when the current resolution funding the government expires.