President Obama can close the military prison at Guantanamo Bay, Cuba, without congressional approval, most experts agree. The real question is a matter of politics, not hypothetical legal rationale, they say.
“Who’s going to stop Obama?” asked legal scholar J. Christian Adams, a former Justice Department attorney. “That has been the question over the last eight years. No one that I’ve seen seems to have the skillset to stop him.”
Legally, the only restriction on his authority is his ability to spend money to transfer any of the roughly 100 detainees to the U.S., not over the facility itself, Adams said.
Even though Congress has set limits via the defense policy bill Obama just signed regarding detainee transfers, the Constitution allows him to do anything he wants with the historic naval facility, two former administration officials recently argued.
“Under Article II of the Constitution, the president has exclusive authority to determine the facilities in which military detainees are held,” wrote former White House Counsel Gregory Craig and Cliff Sloan, special envoy for Guantanamo closure, in the Washington Post last month. “Obama has the authority to move forward. He should use it.”
A former official in the President George W. Bush administration said at one point, Obama could have closed the facility and transferred the remaining prisoners anywhere he wanted. But, since Congress first barred him from using funds to house detainees on American soil or build or modify any prison here in 2010, that is no longer the case, argues the Heritage Foundation’s Charles Stimson, who was Bush’s deputy assistant secretary of defense for detainee affairs.
“In 2009, there were no federal statutes prohibiting President Obama from bringing Guantanamo Bay detainees to the United States for continued detention,” he wrote in a Sept. 28 policy paper on the subject. “Nor was there any statute that prohibited the administration from spending money to acquire or upgrade an existing detention facility in the United States to house Guantanamo Bay detainees.”
Presidents have “the inherent legal authority to order the release of detained enemy fighters, even during an ongoing armed conflict,” he wrote. “But now that Congress has exerted itself, the president may not legally bring detainees to the United States as part of any closure plan.”
One of Obama’s top 2008 campaign promises was to shutter the facility. He signed an executive order to close it his first day in office, but then Congress, in a bipartisan vote, added the aforementioned restrictions into the annual defense policy for the following year and the branches have been at loggerheads about it ever since. The White House has promised for months to send Congress a closure plan. Last week, news broke that he sent Pentagon planners back to the drawing board because their proposal was too costly — $600 million, according to the Wall Street Journal — making it clear that any blueprint would not be well-received on Capitol Hill.
Last month the White House began signaling that Obama was not ruling out closing it via executive order, which prompted lawmakers such as Senate Armed Services Chairman John McCain, R-Ariz., to threaten to sue if he did so.
Adams and other experts have said that Congress would be hard pressed to stop Obama, however.
“They’ve lost almost every time,” Adams said about attempts by lawmakers to block some of Obama’s executive orders.
Frank Scaturro, a former Senate Judiciary Committee counselor who is running for Congress, recently told The Blaze that, like members who were unable to bring suit against Obama on some issues related to the healthcare law, such a case could be dismissed because a court could find that they don’t have legal standing to sue.
“There is a real question of standing because it might be up to a majority of Congress to authorize the filing of a lawsuit and we don’t even know if they would succeed,” Scaturro, now an attorney in private practice, told the paper.
Adams said lawmakers should exert themselves further by dramatically using the legislative branch’s appropriations powers.
“If Congress cared enough, they would make it very clear that lots and lots of near-and-dear programs would get zeroed out if games were played over Gitmo,” Adams said, using a nickname for the prison. “That’s how you stop Obama,” he said, adding “there’s a budget process going on right now” they could use.
The government will partially shutdown Dec. 11 unless Congress approves a spending package carrying out the bipartisan two-year budget deal struck last month.
“No one seems willing to make him a pay a price politically in other areas [if he goes around Congress] because they don’t want to shut down the government,” Adams said. “They punt to the federal courts. But no federal court is going to order him to behave a certain way on something like this.”
Although originally outraged at the suggestion that Obama would just carry through with his original executive order, McCain last Wednesday said there is still a way for lawmakers to work him to finally close it.
“You could use an existing facility, upgrade that facility, and make changes in law so that we can be sure that we would not be forced to release those who have been judged too dangerous to ever be released,” McCain said, referring to the 48 detainees that the Guantanamo Review Task Force deemed as “too dangerous to transfer but not feasible for prosecution.”
“There is a viable alternative” to the constant stalemate or Obama acting unilaterally, McCain said.
The Obama administration says the president’s preferred path is working with Congress.
Without confirming the Wall Street Journal report that Obama deep-sixed a Defense Department closure plan already, White House spokesman Josh Earnest on Wednesday said the administration will send a plan to Capitol Hill still, and make it public. He would not say when that would happen.
