Despite promising at the start of his presidency to close the prison at Guantanamo Bay, President Obama has yet to exercise the clear independent authority to do so. In a recent Washington Post op-ed, 2009 White House counsel Gregory B. Craig and Cliff Sloan, special envoy for Guantanamo closure 2013 and 2014, urged President Obama to abandon trying to get Congressional approval and simply use his direct Article II Constitutional authority to close Guantanamo and decide where and how the remaining detainees who have not been cleared for release would be charged and tried. 107 detainees remain and of these 48 have been cleared for release; 10 face serious criminal charges and are to be tried before military tribunals.
The question is not whether the president can unilaterally take the nation to war or hold detainees without congressional authorization. The question is whether Congress can tell the president where military detainees must be held and tried. Craig and Sloan say the answer is an emphatic “no”. Congress’s purported ban on funding any movement of detainees from Guantanamo Bay to the United States restricts where law-of-war detainees can be held, and attempts to prevent the president from discharging his constitutionally-assigned function of making tactical military decisions. Accordingly, the Congressional ban on prisoner transfers violates the constitutional separation of powers.
In a 20 November 2015 Washington Post editorial it is argued that Obama cannot act alone and he must attempt to work with Congress. However, the editorial has no value as it ignores the controlling law embodied in Article II of the Constitution with its specific mandates.
“The executive Power shall be vested in a President of the United States of America.”
US Constitution Article II, §1
“The President shall be Commander in Chief of the Army and the Navy of the United States …[.].”
US Constitution Article II, §2
The failure to close Guantanamo and the consequent injury to the Rule of Law does not begin or end only with President Obama. Commencing in 2010, the Republican majority in the House of Representatives has opposed every initiative of the administration, without exception, with no meaningful attempts to seek alternatives. It appears their principal goal is to cripple and ultimately destroy President Obama’s administration, reputation, and legacy.
Thus far, the Republican majority’s assault on the executive branch of the government compromises the president’s ability to govern and is in stark contrast to the Republican complicity in the unprecedented unitary executive power exercised during the Bush administration. There are historic parallels to the far right’s rhetoric, domestic obfuscation, and international jingoism in American social and political history. The current Republican behavior mirrors that of the Southern Democrats in the Congress immediately prior to the United States Civil War and the anti-Communist extremism of the McCarthy era in the 1950s. Republican governors in some states now even openly speak of nullification of federal law and secession. As a result, Congress has been rendered virtually useless in its duty as a partner in protecting the Rule of Law in the many instances where it is under attack. This dysfunction is rare but not unprecedented. The far-right opposition to any informed or nuanced discussion of the fundamentals of government is basic to understanding the context within which the Obama administration must pursue its constitutional and political initiatives. But these impediments Obama faces do not excuse his failure to take or avoid condoning many actions that are within his explicit executive authority. If the President continues on this course, he will have forfeited the opportunity, responsibility, and constitutional obligation to take historic actions in defense of the Rule of Law.
When the Bush administration created the Guantanamo prison for terror detainees, it made no prior announcement. By the time photographs of the sensory deprived and shackled prisoner were revealed to the public, it was a fait accompli. In contrast, President Obama’s first White House counsel Gregory Craig’s efforts to close Guantanamo were disclosed to the public in advance, including details of the specific substitute prisons in the United States for housing Guantanamo detainees and an announcement that the detainees would be charged criminally and tried within the civil courts of the United States. President Obama permitted these disclosures rather than simply proceeding with no fanfare. This may have been stimulated by the fact that he was new to power, desired a bipartisan presidency, and was unaware of the Republicans’ oath to oppose any and everything he presented to the American public. Senate minority leader Mitch O’Connell, announced on the day of Obama’s first inauguration that job number one was to prevent Obama from having a second term. Congressional Republicans would not be a loyal opposition but rather would take the role of disloyal saboteurs. Whatever Obama wants, they oppose. This continues today.
Reportedly, the Pentagon is sending evaluation teams to assess several military and federal prisons as possible replacements for Guantanamo Bay, but it remains to be seen whether the plan the Defense Department presents to Congress will win bipartisan support. Once again, President Obama is apparently simply hoping he can persuade lawmakers to help him close Guantanamo despite the fact that Congress seems determined to prevent it. Obama needs to act, not discuss wishful plans. Undoubtedly, Republicans will very soon be arguing that the recent terrorist attacks in Paris justify the continuation if not the expansion of Guantanamo.
Featured image: Satellite picture of Guantanamo Bay. Photo by NASA. Public domain via Wikimedia Commons.