The federal detention facility at Guantanamo Bay is one of those issues that transcends partisan politics in the United States. If you search any corner of Washington, DC, you are bound to find both Republicans and Democrats who support closing the Guantanamo prison down for good.
Indeed, there are so many high-profile names advocating for the closure of “Gitmo” that one would think the entire debate would have been resolved long ago. Among them are Henry Kissinger, Colin Powell, Madeleine Albright, James Baker, Condoleezza Rice, Mike Mullen, David Petraeus, Robert Gates, Brent Scowcroft, and George W. Bush—six secretaries of state, two respected commanders, a secretary of defense, a national-security adviser, and a former (Republican) president, respectively. They’re all on record as supporting a shutdown of the detention center. If president Obama does in fact decide to take more aggressive, unilateral measures under his presidential authority to empty the facility, he will have the most well-known and senior Republican and Democratic foreign-policy and national-security officials on his side.
Again, if eliciting bipartisan backup from prominent US officials was the only roadblock in president Obama’s way (he signed an executive order to close the prison in 2009), the Guantanamo chapter would have been closed years ago. The opposition surrounding Gitmo’s termination is such that not even these names have convinced the US congress to cooperate with the White House on one of its most significant campaign pledges. If there is bipartisan support for ending Guantanamo, there is also bipartisan support for keeping the facility open in near perpetuity, too.
Exhibit A: The Nov. 5 congressional passing of the FY16 National Defense Authorization Act, which once again prohibits the US defense secretary from using any funds to close the facility, modify or build facilities in the United States to house Guantanamo detainees, or transfer detainees into the US for incarceration or trial. That legislation passed the House by an overwhelming 370-58 margin.
President Obama is now working on borrowed time, and he has some very consequential national-security decisions to make in the next 14 months of his term. The White House is still very much in favor of getting rid of Guantanamo before the next president takes the oath of office. But is unfortunately if not predictably limited in the tools at its disposal.
First, Obama can attempt to cajole Congress to change the language of Gitmo: In the normal course of legislative business, the administration would call up a member of Congress on the phone or invite a group of lawmakers to the White House and negotiate compromise wording on provisions that they find objectionable. This is exactly what occurred with the Iran Nuclear Agreement Review Act, where the original version authorized by Senate foreign relations committee chairman Bob Corker was watered down to make the final package more acceptable to Senate Democrats. On the issue of Guantanamo, however, congressional Republicans have not been willing to negotiate at all. The FY14 NDAA which made it easier for the Pentagon to transfer cleared detainees to third countries was erased the very next year. The GOP is not in a compromising mood on this issue; after president Obama vetoed the FY16 NDAA legislation two weeks ago in part over Gitmo restrictions, Republicans decided to re-introduce those same restrictions in the new bill. Further negotiations, therefore, are a waste of time for the administration, because there are no negotiations to be had.
He could also sell the Gitmo plan to the public. Senator John McCain or Arizona, the chairman of the Senate armed services committee, has been promised a full-scale, comprehensive plan from the administration about how the defense department seeks to close the facility; which third-party countries will accept prisoners who have already been cleared by the US government; where the rest of the detainees will be housed inside the US; and how much money the plan would cost the US taxpayer.
After what seemed like an endless delay of pushed deadlines and promises, McCain will finally be receiving the plan in the very near future. If president Obama has any chance for that plan being implemented , however, he will need to mount a full-court press on the American public and to members of Congress about why the course of action he has chosen is in the best interests of US national security. This will be a tall order, particularly given a controversial, Bush-era detention tactics that congressional Republicans (and some Democrats) would prefer to keep in place. But as his successful lobbying effort on the Iran nuclear agreement showed, president Obama can achieve his policy objectives when he makes a concerted effort in Congress to convince lawmakers that continuing the status-quo is the worst of the options available. President Obama doesn’t have much choice but to search for power within his own office.
Whether or not a similar playbook will work in this case is anything but guaranteed—but the administration doesn’t have a chance if they don’t try.
Obama could alternatively flex executive authority. White House press secretary Josh Earnest has suggested that the president would use all of his executive powers to make good on the vow to close Guantanamo before he leaves office. “I would not,” Earnest said, “take anything off the table in terms of the President doing everything that he can to achieve this critically important national security objective.”
The question, of course, is whether president Obama possesses the legal authority under the US Constitution to override congressional statute through an executive order that would whittle the detainee population down and transfer those who cannot be released to the US prison system. Depending on which lawyer is asked the question, you will receive a number of different answers.
Jack Goldsmith, a former assistant attorney general in the office of legal counsel (OLC), within the US justice department, argues that it isn’t at all clear that the president has that authority available. A 2009 legal memo authored by the OLC states that the president’s authority as commander-in-chief does not allow the executive to block Congress from having a role in “the detention, interrogation, prosecution, and transfer of enemy combatants.” And yet the president would certainly be able to find a lawyer in his administration to argue the case he wants to make.
Of the three options presented above, executive action is probably the most likely to be employed in the current political environment. With Republicans dead set against closing Guantanamo, and the GOP possessing majorities in both the House and Senate, president Obama doesn’t have much choice but to search for power within his own office. He’s laid the groundwork over the past four years through signing statements asserting that congressional restrictions on the movement of Guantanamo detainees “violates constitutional separation of powers principles,” and in theory could be ignored under the President’s Article I powers.
If the majority of Republicans who oppose the closing of Guantanamo refuse to meet the administration half-way, they better prepare themselves for the largest assertion of presidential power of the Obama tenure. And president Obama better prepare himself to get smacked with another Republican-led lawsuit.
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