In 2010, a bipartisan Congress passed a bill preventing the administration from transferring prisoners held in Guantanamo Bay, Cuba, to the mainland. Every year since, Congress has reauthorized the measure, attaching the restriction to the National Defense Authorization Act.
The will of Congress in this matter is clear. But when did the will of the people’s representatives stop this president from getting his way?
Barack Obama entered the presidency promising to close the Guantanamo prison camp. Apparently stung by his inability to persuade even members of his own party to pass legislation that would accomplish that goal, the president is once again thinking about using his executive authority to go around Congress and unilaterally change the policy.
The Wall Street Journal reports:
White House officials have concluded Mr. Obama likely has two options for closing Guantanamo, should Congress extend the restrictions, which it could do after the midterm elections.
He could veto the annual bill setting military policy, known as the National Defense Authorization Act, in which the ban on transferring detainees to the U.S. is written. While the veto wouldn’t directly affect military funding, such a high-stakes confrontation with Congress carries significant political risks.
A second option would be for Mr. Obama to sign the bill while declaring restrictions on the transfer of Guantanamo prisoners an infringement of his powers as commander in chief, as he has done previously. Presidents of both parties have used such signing statements to clarify their understanding of legislative measures or put Congress on notice that they wouldn’t comply with provisions they consider infringements of executive power.
The core obstacle standing in the White House’s way is Congress’s move in 2010 to ban the transfer of Guantanamo detainees to the U.S. That legislation was passed after the administration sparked a backlash when it proposed relocating detainees to a maximum-security prison in Thomson, Ill.
The administration hopes to tamp down controversy by reducing the inmate population by at least half through quickly transferring Guantanamo detainees cleared for release.
On Thursday, Estonia, which Mr. Obama visited last month, announced it would accept one detainee. Officials said additional transfers are in the works.
“We are very pleased with the support from our friends and allies, and we are very grateful to them,” said Clifford Sloan, the State Department envoy for Guantanamo closure.
Nonetheless, administration officials say the detention center can’t be closed without sending at least some of the remaining inmates to the U.S. mainland.
Mr. Obama said in his 2014 State of the Union address that “this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay.” The president now expects to miss that deadline, administration officials say, a departure from earlier this summer when White House aides were still saying it was possible.
Mr. Obama’s decision in May to exchange Guantanamo detainees for an American prisoner of war, Sgt. Bowe Bergdahl, without the required 30-day advance congressional notice drew a backlash on the Hill. The start of a U.S.-led fight against the Islamic State militant group has similarly overshadowed any appetite for a repeal of the ban.
What can Congress do? They can deny the president funds to transfer the prisoners, although Obama has shown himself to be creative in this regard. He took monies from HHS earmarked for other uses to fund his Obamacare rollout. There’s nothing stopping him from dipping into one Pentagon fund or the other to finance his congressional workaround.
How many detainees would be housed on American soil? That depends on how effective the administration is in convincing other countries to willingly take accused terrorists into their midst. The fact is, there are still 179 inmates held at the prison because few countries are enthusiastic about taking their nationals back after they were accused of being terrorists. Repatriation of the terrorists has come to a standstill.
Of the 149 who remain, 79 have been approved for transfer by national-security officials but remain because of political or diplomatic obstacles in repatriating them.
Another 37 have been designated for continued detention without trial. These are men considered too dangerous to release, yet against whom the government lacks usable evidence. A further 23 have been referred for prosecution by military commission, where 10 detainees, including Khalid Sheikh Mohammed and four co-defendants accused of orchestrating the Sept. 11 attacks, are in pretrial hearings.
It appears that at least 60 hardened terrorists will be placed in mainland prisons without the consent of Congress or the people.
It’s been said before but it bears repeating. We’re in uncharted waters. Separation of powers as envisioned by the Founders doesn’t work unless all branches of government recognize that there are limits to what they can do. There may be disagreement on where those limits are, but at the very least, all must agree that limits exist.
It is troubling in the extreme that President Obama refuses to accept limits on his power. He claims to be reluctant about using his executive authority but who believes that? He will do anything and everything to effect his kind of “transformation” of America. And until Congress and the courts make up their mind to stop him, he will continue to do so.
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