I will say that we have always maintained that we need increased prison facility, and I think the law prevents the Department of Defense from — but not the Department of Justice — from purchasing such a facility.

The annual Justice Department funding bill has only barely arrived in the House Judiciary Committee, so perhaps that will become the vehicle for the purchase.

Gibbs also said that the administration will send a report to Congress explaining why the Thomson-based Guantanamo closure makes sense. But it’s not clear from the summary language of the markup of the defense authorization bill that receipt of such a report will unlock the Thomson money. Either way, the administration needs to get on that: A full House vote on the bill is expected next week.

The sun rises over Camp Delta at Guantanamo Bay. (MICHELLE SHEPHARD/TORONTO STAR)

The Obama administration’s longstanding pledge to close the detention facility at Guantanamo Bay just hit a major obstacle in the House, creating doubts over whether the detention facility can be closed this year — if at all.

Last night the House Armed Services Committee finished this year’s bill authorizing $567 billion worth of defense spending and another $159 billion for the Afghanistan and Iraq wars for the fiscal year beginning in October. Following an administration budget plan announced in February by Pentagon comptroller Robert Hale, the Afghanistan war request contained a vague provision — indeed, not even carrying the words “Guantanamo Bay” — called a “transfer fund” to authorize the purchase of the Thomson Correction Center in Illinois. The administration wants to buy Thomson in order to have a secure facility on U.S. soil to house those Guantanamo detainees it designates for military commissions or indefinite detention without charge. Once the federal government buys Thomson, it can shut down Camp Delta at Guantanamo Bay.

[Security1] Or that was the plan. The actual bill hasn’t been released yet. But buried at the bottom of an extensive summary the committee released last night is an express prohibition on the use of any Defense Department money to buy a new detention facility. According to the bill summary, the bill now requires Defense Secretary Robert Gates to give Congress a report that “adequately justifies any proposal to build or modify such a facility” if it wants to move forward with any post-Guantanamo detention plan.

“The Committee firmly believes that the construction or modification of any facility in the U.S. to detain or imprison individuals currently being held at Guantanamo must be accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility,” the summary text read. “No such plan has been presented to date. The bill prohibits the use of any funds for this purpose.”

That might place insurmountable obstacles to the the so-called “Gitmo North” plan to transfer Guantanamo detainees to Thomson. “They can’t just create Guantanamo North and move everyone up there. That’s clearly barred,” said Chris Anders, a senior lobbyist for the American Civil Liberties Union who monitored yesterday’s mark-up. “It doesn’t mean that the proposal is dead, but it’s hard to see how it makes a comeback after the House Armed Services Committee says there can’t be money spent on Thomson.”

That’s not all. While the bill doesn’t renew the current Congressional ban on transferring detainees from Guantanamo into the U.S. — set to expire in October — it requires President Obama to submit a “a comprehensive disposition plan and risk assessment” for any future detainee transfer. Congress would then get “120 days to review the disposition plan before it could be carried out.” Additionally, Congress would get a 30-day review period for the proposed transfer of any detainee from Guantanamo to a foreign country in order to check against a detainee inflicting violence against the U.S. or its interests. The summary instructs Gates to tell Congress that any such foreign transfer meets “strict security criteria to thoroughly vet any foreign country to which a detainee may be transferred.”

The bill, which passed the committee on a vote of 59 to 0, will go to the House floor and receive a vote most likely next week. A Senate Armed Services Committee mark-up of the companion bill in the Senate is scheduled for the end of May.

This is a major setback for Obama’s campaign pledge to close the Guantanamo Bay detention facility. While it’s theoretically possible for an amendment authorizing the Thomson purchase to come back into the bill during floor debate, “this makes it much, much harder for the administration to move forward with the closure of Guantanamo, there’s no doubt about that,” said Vincent Warren, the executive director of the Center for Constitutional Rights. “It’s hard to see what reasonable options the president has without jumping through congressional hoops that are unreasonable and unnecessary, and it’s harder to move forward both with prosecuting those who are terrorist suspects and releasing to freedom those who are not.”

But beyond the closure of the detention facility itself, the prohibitions now contained in the bill have policy implications for the dispensation of justice for detainees remaining at Guantanamo, a burning political issue all through this year. Those “abhorrent” prohibitions, Warren said, “essentially prohibit the executive from moving forward with its constitutional and human-rights obligations to try people [and] creates a paradigm where the operative default mechanism will be to detain people without trial.” In April, Attorney General Eric Holder pledged to work with Sen. Lindsey Graham (R-SC) on a new legal architecture for indefinite detention without charge.

Anders took a more optimistic view. If the bill passes, as is likely, the administration “will have to work harder and work faster at what they’ve been doing effectively for the past 16 or 17 months, which is repatriating and resettling detainees one by one who have been cleared and then bring people here for prosecution,” Anders said, even with the new congressional repatriation restrictions. This week, one of those detainees the administration designated for civilian prosecution, Ahmed Khalfan Ghailani, who has been transfered to a Manhattan prison, unsuccessfully urged a federal judge to dismiss his case.

But such an incremental approach would not allow Obama to close the facility until the last detainee either leaves or faces criminal charges, a process likely to take years even without all of the political obstacles that have emerged around terrorism trials and holding terrorism defendants in federal corrections facilities. Additionally, it would require Holder and the Obama administration to abandon a decision that has been much reviled in the civil libertarian community: designating 48 detainees currently held at Guantanamo for continued indefinite detention without charge.

Closing the detention facility at Guantanamo Bay was a bipartisan goal before President Obama took office, with both President Bush and Sen. John McCain (R-Ariz.), the 2008 Republican presidential nominee, rhetorically committed to shutting down an international symbol of American lawlessness. But an effective campaign waged by conservatives to portray the closure as negligent with national security — and Obama and the Democrats as weak for seeking it — has raised the political stakes for Democratic members of Congress. Last year, the Senate voted with 90 votes to prohibit the transfer of detainees from Guantanamo to the U.S., and this year, the still-unresolved question of whether Khalid Shaikh Mohammed and the 9/11 conspirators ought to be tried in civilian courts or military commissions has become Holder’s defining challenge. With Republicans hostile to the Guantanamo closure plan likely to gain seats in Congress after the November midterm elections, future attempts at closing the facility are likely to face even greater political opposition.

Requests for comment to the White House and the Office of the Secretary of Defense were not immediately returned.

Tomorrow, the House Armed Services Committee marks up H.R. 5136, its final committee step in the House before heading to the House floor. And within Title XIV of the bill is something called the “Overseas Contingency Operations Transfer Fund.” The version reported on April 26 — the final markup version is now in congressmen’s hands — authorizes $1,551,781,000 for that fund. But if it sounds like you don’t know what that “transfer” fund means, it’s because the opacity is to protect the fund from legislators.

Robert Hale, the Pentagon comptroller, explained in a press conference when the budget was released this winter that part of that money is for closing the detention facility at Guantanamo. “In fiscal year ’11, there is a transfer fund that could be used for all aspects of detainee operations, $350 million,” Hale told reporters. “It would permit us to transfer funds to places where we need to close or transition Guantanamo. It would permit us to transfer funds to accounts that would let us open the Thomson, Illinois site.”

If that fund makes it through the markup, then it’s just passed a major hurdle. The House will approve the entire defense budget, probably as early as next week, and it’s highly unlikely to hold up a huge bill that contains next year’s Afghanistan and Iraq war money for the controversy of closing Guantanamo. (The Senate Armed Services Committee’s markup comes at the end of the month.) If the fund money gets stripped out of the bill during markup, however, then it gets much harder to shut the detention facility down. Given the likelihood of increased Republican ranks in Congress after November, it may become effectively impossible.

The gray bar is for combat funding — Iraq and Afghanistan together. Robert Hale, the Pentagon comptroller, told a press conference that starting next fiscal year, the Pentagon is presuming for budgeting purposes that the wars will cost $50 billion, thanks to the Iraq drawdown. So if that’s the case, then it’ll take a grand total of four more budgets for the Obama Pentagon budget to outspend the final two Bush budgets when the big big costs of sustaining the 2007-8 Iraq surge is factored into the equation. It may be unfair to Obama to compare base budget growth to base-budget-growth-plus-war funding, but that’s the only way for Congressional Republicans to actually argue that Obama is cutting defense — and you know that’s an inevitable line of criticism. So when they say that, you can refer to this chart and know that the only way that line of argument can possibly be true is for us to continue pouring money down the sinkhole of Iraq. Because any way you slice it, that blue baseline funding bar is rising and rising.

Robert Hale, the Pentagon comptroller, just made that announcement in a budget briefing that’s still going on. Basically, the fiscal 2011 budget request for the costs of the Iraq and Afghanistan wars — that’s $159.3 billion, by the way, total — contains a $350 million “transfer” fund that would allow the administration all aspects of shuttering the detention facility in Cuba, Hale said, including the purchase of Thomson. And, repeating a call made by Defense Secretary Robert Gates, Hale called on Congress to pass the supplemental “by spring — so we can meet all the needs of our troops.”

That amounts to a dare to congressional Republicans. If you try to filibuster money for closing Guantanamo, you’ll be denying the troops in the field with the money they need to succeed in Afghanistan denying the military of half a trillion dollars. The Bush administration repeatedly denounced budgetary obstructionism on the war by congressional Democrats — especially during the summer of 2007 when they tried to stop the Iraq surge — as a slight to the troops. Gates was in his same chair for some of that, and now he’s basically saying he’s not afraid to say the same thing to the GOP. Their move.

Update: My mistake, I misheard Hale. The money to close GTMO is in the fiscal 2011 base budget. The political calculus is modified accordingly but still applies.

Final Update, I Promise: My mistake, I misread the transcript for the above update. I heard Hale properly the first time around and reported this accurately. To be very clear: the money requested for closing Guantanamo is contained in next year‘s Afghanistan supplemental funding, now called the “Overseas Contingency Operations” fund.

The Pentagon cost includes higher combat wages, extra aircraft hours and other operations and maintenance costs, but omits such items as new weapons purchases — one-time costs that vary by year — and support equipment like spy satellites and anti-roadside-bomb technology.

The Pentagon also does not try to estimate costs of new bases for additional soldiers.

But in a memo early this month, obtained by The Times’ Washington bureau, the Pentagon’s own comptroller produced an estimate that broke with the customary Defense formula and did include construction and equipment.

According to that memo, a 40,000-troop increase would cost an additional $30 to $35 billion annually. That’s on top of current war costs — which, as the piece reports, are rather hard to determine with precision. But if we take the memo’s reported calculation of at $750,000 per soldier/sailor/airman/marine annually, then we’re looking at an existing cost of $51 billion before an escalation. (And that seems kind of small, no?) Why the Pentagon thinks that the American people need to be lied to in order to go along with escalation is a whole other story — one that, perhaps, will be told in congressional testimony.

Additionally, it was kind of interesting to see this New York Times story go into how the different troop-escalation options would be implemented without a consideration of how many troops are actually able to deploy.

Mullen anticipated the charge that the process Gates put in place to formulate the budget muzzled uniformed critics.  It was “comprehensive and collaborative,” he said, with “every service chief [and] every combatant commander [having] a voice” and using it. Instead of asking all the services to “share the pain equally” in program cuts — which typically preserves the status quo — there were “no pet projects, nothing [was] held sacred.” The budget, according to Mullen’s bottom line, provides the United States with “the military it needs for the challenges it faces today.”

I put in calls and emails to Sen. Carl Levin (D-Mich.), the chairman of the committee, who put a hold on Lynn’s nomination on Jan. 22 for ethics reasons, only to lift it the next day after the Obama White House exempted Lynn from its ethics requirements against lobbyists joining the agencies they lobby. As far as I’m aware there isn’t an additional hold on his nomination, but I’ll post as soon as I have more information on why the Senate didn’t move on Lynn’s nomination today.

Update, 7:03 p.m: Regan Lachapelle, a spokeswoman for Sen. Harry Reid (D-Nev.), the Senate Majority Leader, says that Reid’s office anticipates bringing Lynn’s nomination to the Senate floor tomorrow. More to come.

Citing recent meetings, the Navy bulletin warns officials that all bets are off and the service’s FY-10 budget plans — known as the program objective memorandum, or POM-10 for short — could soon see big adjustments.

“As you know, our original planning assumption was that the POM-10 we submitted would undergo only minor changes,” the message states. “That may no longer be accurate.”

Well, maybe. At deputy defense secretary-designate Bill Lynn’s confirmation hearing last week, Sen. Jim Webb (D-Va.), a former Navy Secretary, upbraided the service for redundant shipbuilding plans, program cost overruns and a lack of overall strategic planning about what sort of fleet the U.S. requires. Lynn, along with comptroller-designate Robert Hale, pledged a thorough review. And all of that falls into line with, as Castelli points out, Secretary Bob Gates’ recent call to better balance the defense community’s irregular warfare needs with its traditional, conventional, big-ticket-item needs. Counterinsurgency advocates and counterinsurgency skeptics alike are waiting to see how that actually cashes out in terms of Pentagon budgeting.

And there lies the prospect for budgeting chicanery. Castelli ends his piece by summarizing that Navy bulletin’s guidance:

Those who work on high-tech information operations, networks, intelligence and space capabilities must advocate for their high-tech programs by tying them to warfighting and using language that warfighters who are not information technology specialists can understand, the bulletin advises.

That sounds a whole lot like the Navy will attempt to redefine its Rumsfeld-era and pre-Rumsfeld era high-tech stuff as irregular-warfare support. In the Rumsfeld Pentagon, defense officials knew to write their budget requests in a way that sounded pleasing to Defense Secretary Donald Rumsfeld’s amorphous, tech-heavy vision of “transformation.” Now it appears that the services may attempt to justify the same old programs by gussying them up in counterinsurgency-friendly language. (“… the DDG-1000 destroyer contributes to full-spectrum operations, facilitating a whole-of-government approach…” — oh, and look who has a huge piece of the DDG-1000 contract: Raytheon, the company that’s given us Deputy Defense Secretary Bill Lynn. Will the program survive, do you think?)

This is a classic defense budgeting trick, and one I’ll be paying very close attention to when the next budget gets released.

Notwithstanding Holder’s language about whether we’ve been at war since before 9/11, Kate tells me she hasn’t heard Holder use the phrase “war on terror” or “war on terrorism” in his hearing. Neither did Hillary Rodham Clinton on Tuesday. And neither did Pentagon picks Bill Lynn, Robert Hale, Michele Flournoy and Jeh Johnson this morning. I admit I didn’t catch Homeland Security Secretary-nominee Janet Napolitano’s hearing today, but this is starting to sound like a trend.

If so, is it a decision coming down from President-elect Barack Obama? Or am I misinterpreting this? I have a line out to the transition to see.

Update: It looks like it’s just me. Ben Smith reported on January 9 — Panetta-rollout-day — that CIA Director-designate Leon Panetta used the term in his prepared statement. Is he the outlier? Ok, ok, I’ll stop.