Obama still trying to close Guantanamo Bay prison in spite of Congressional roadblocks

Obama is poised to present his plan for closing the prison facility at Guantanamo Bay, a plan that involves transfer of some inmates to the US. The plan may be revealed as early as today, Friday the 13th of November.

 

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The transfer of any inmates to U.S. soil is prohibited by the U.S. Congress by provisions in a recently passed defense bill. The provisions also place restriction on transfers of inmates to other countries. The Obama plan suggests seven facilities in the U.S. to which inmates could be transferred. The list includes two in Colorado one of which has a Supermax facility for very dangerous inmates. The report indicates the advantages and disadvantages of each facility but does not rank them. No doubt Obama would probably choose a facility in a location that has the least local resistance to the transfer or even had local support.

Guantanamo now holds 112 detainees with 53 eligible for transfer to another country. The other 59 will either face trial by military commission or the government has decided that they are too dangerous to release but are not facing charges. A key aspect of the shame of Guantanamo was that it held prisoners indefinitely without charge. Yet Obama's plan retains that feature while closing the facility. As a Guardian article notes:The administration claims they cannot charge and hold a trial for dozens of detainees (in many cases, because torture will likely taint any evidence), but they also say they consider them “too dangerous” to release from US custody. So the plan appears to be to let them rot in jail forever – in clear violation of the fifth amendment – in a supermax prison somewhere inside the United States.

Those who oppose Obama's plan appear not to even take notice of this aspect of his plan. They worry that the inmates might pose a danger to Americans even though there are already many terrorists locked up in the U.S. quite safely it would appear. Ben Carson, the frontrunner in the Republican presidential nomination race, probably speaks for many Republicans when he says on his Facebook page that the Guantanamo detention facility must be kept open even though many observers think that it is a prime recruiting tool for jihadists. Even George W. Bush thought it should be closed.

There are difficulties too in transferring the 53 cleared for transfer to another country. U.S. Defense Secretary Ash Carter must be certain that the detainees will not return to terrorism or the battlefield. Many of those cleared for transfer are from Yemen now in the midst of a civil war in which Al Qaeda is making great gains. Carter is not about to repatriate any Yemeni inmates.

Many analysts and legal experts argue that Obama could easily use his executive power as commander in chief to transfer Guantanamo inmates to the US without congressional approval. The main argument is relatively straightforward. The former special envoy overseeing Guantánamo’s closure, Cliff Sloan, and a former White House counsel, Gregory Craig, wrote a commentary on Nov. 6 in the Washington Post arguing that, under his powers as commander in chief outlined in Article II of the Constitution, “the president has exclusive authority to determine the facilities in which military detainees are held.”

A similar argument has been made by Harold Koh, a former top legal advisor at the State Department.

It would be somewhat ironic if Obama does use his executive power and ignore the U.S. Congress. In 2007 as a senator Obama accused the G.W. Bush administration of "clear abuse of power" for claiming sweeping authority to ignore Congress. However as president Obama has moved in the same direction of extending executive privilege: He has invoked commander-in-chief authorities to justify the widespread use of lethal drone strikes abroad and the secrecy surrounding them, despite criticism that in many cases the individuals targeted did not represent an “imminent threat” to the United States.When he wants to claim and use executive power Obama does so, but when he has it but does not want to use it he claims he cannot act because Congress is preventing him.

The problem for Obama with using his executive power is that he could face not just a legal challenge but challenges to cut funding for government priorities or even a shut down, as well as refusal to approve nominations for key positions. Obama may not be willing to face such a political battle even if this means not being able to carry out a key promise that he has continually said he will keep. Perhaps Obama might wait until after the November election to carry out the transfer of detainees to the U.S. by executive order. Already, the Republicans are making the plan to close Guantanamo a joint Obama-Clinton operation as shown on one appended video.