June 4, 2014
Congressional Republicans, and some Democrats, are accusing Obama with having violated a law prohibiting the release of detainees from Guantanamo without advance notification to Congress. Obama’s position, outlined in a signing statement, is that the law unconstitutionally limits his authority as commander in chief.
It seems to us the president has the better of that argument: Holding or releasing enemy combatants is indeed a command decision, not a legislative one. Even if Congress has a colorable case, a court might find the dispute to be a nonjusticiable political one. And even if it’s justiciable, what remedy could a court grant? An injunction ordering the Taliban to get back to Gitmo?
Thus the test of Obama’s ability to free terrorists from Guantanamo is a political more than a legal one. And the politics look to be tougher than the administration anticipated. Why, even Michael Tomasky is likening the president to the hapless Michael Dukakis.