President Guantanamo Obama may move to shut the prison down in violation of the law. ****
http://www.wsj.com/articles/president-guantanamo-1447805185
President Obama rode into the White House vilifying George W. Bush’s “unchecked presidential power” and “ignoring the law when it is inconvenient,” as he put it in 2007. Yet now Mr. Obama is poised to exceed any executive action his predecessor so much as contemplated as he may shut down Guantanamo Bay in defiance of inconvenient laws he signed.
Attorney General Loretta Lynch on Tuesday testified that she knew of no Administration plans to go around Congress, though a Justice Department spokesman later said this was not a definitive statement. This confusion comes on the heels of the U.S. release of five Guantanamo detainees who were sent to the United Arab Emirates.
Mr. Obama promised to close the terrorist prison in Cuba during his first week in office—but as journalist Charlie Savage reports in his new book “Power Wars,” Mr. Obama’s military-legal team was surprised to discover that most of the enemy combatants were as dangerous as Mr. Bush said they were. Thus Gitmo has remained open, while Mr. Obama’s bid to try Khalid Sheikh Mohammed and the 9/11 plotters in civilian courts exploded on the launch pad amid bipartisan opposition.
With the end of his tenure in sight, the President is now looking for legal excuses to close the prison without Congressional approval. Since the KSM fiasco in 2009, Congresses run by Democrats and Republicans have specified in defense bills that no Treasury money may be used to transfer or maintain detainees to the U.S. The prohibitions in the most recent defense legislation—which passed the Senate 91-3 and the House 370-58—are the strongest ever.
Yet the Pentagon may soon announce a plan to transfer the remaining 107 dangerous combatants that no other country will accept to a domestic facility such as Fort Leavenworth or the Colorado supermax. Amid Mr. Obama’s many executive rewrites on carbon, ObamaCare and labor this flouting of the law would be the worst.
Mr. Obama’s legal surrogates including former White House counsel Gregory Craig now argue that Congress’s spending restrictions are unconstitutional. They claim the executive has exclusive Article II powers as Commander in Chief over the tactical conduct of war and diplomacy, including the custody of detainees.
But control over wartime prisoners is divided between the President and legislature. The Constitution vests Congress with the power to “make Rules concerning Captures on Land and Water,” and not even the most zealous unitary executive theorists read the Captures Clause out of Article I. Congress cannot micromanage military operations, but it has a constitutional role in regulating them.
In 2009 Office of Legal Counsel chief Steven Bradbury wrote an opinion disavowing the legal argument Mr. Craig is now promoting, and Mr. Obama has abided by Congress’s restrictions for seven years. No current emergency justifies ignoring Congress, as Mr. Obama claimed when he traded five Taliban for Bowe Bergdahl in violation of a prisoner swap law.
Then again, legal power and influence in this Administration has ebbed from the respected and quasi-independent Office of Legal Counsel. Mr. Obama has centralized his operation inside his White House counsel and National Security Advisor, and they’ll rubber stamp any expansion of executive power.
President Obama won’t take our advice, but closing Gitmo by himself will invite a backlash that will hurt his party and the Presidency, especially after Paris. Congress will be well within its rights to sue Mr. Obama for violating the separation of powers, and the courts may undercut his office to check his overreach.
Allowing the detainees to set foot on American soil will also reopen the Pandora’s box of civil-liberties litigation that could impair the war on terror. The Supreme Court has deferred to the political branches since the 2008 Boumediene decision that extended habeas corpus to the foreign fighters at Gitmo. The Justices could decide detainees are entitled to more or all of the same constitutional rights as U.S. citizens.
Then there are the familiar problems of treating terrorists as garden-variety criminals. How will judges deal with rules against hearsay evidence, or obtained through coercion, or on the battlefield? What about Miranda rights? Some of the worst detainees may be impossible to convict in civilian courts due to the rules of evidence. Will they then have to be released?
The tragedy is that many GOP hawks support closing Gitmo as a symbol and terror-recruitment tool. John McCain has beseeched Mr. Obama to supply a plan that can plausibly pass Congress, and even included language in the draft defense bill mandating an up-or-down vote if Mr. Obama submitted a plan before the bill passed. He didn’t, and the provision was struck.
We suspect that’s because Guantanamo’s questions are indissoluble. Since the 1980s the American political system has been deadlocked about storing nuclear waste in a remote mountain in the Nevada moonscape—but now Mr. Obama will charge ahead on a far more radioactive dilemma without the consent of Congress, much less a national consensus. That he is even considering the option shows how far this President has strayed from the law and Constitution.
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