Detention: Law of

New York Times Renews Call for Guantánamo Prison Closure

By Alan Z. Rozenshtein
Monday, November 26, 2012, 3:33 PM

As Ritika noted earlier today, the New York Times editorial page has renewed its call for the Obama administration to close the prison at Guantánamo Bay. (I'll take it from Ben's lack of snark that he judges the Times to have gotten its facts right, so onward with the merits of its argument.)

Taking the President at his word that he "still want[s] to close Guantánamo," the Times puts most of the blame on Congress and the onerous transfer restrictions contained in the annual National Defense Authorization Act (NDAA), the latest version of which is currently being negotiated in Congress:

The fact is, Guantánamo cannot be emptied without ending the Congressionally imposed restrictions on transferring prisoners to the United States; on using funds to prepare facilities on American soil that could house Guantánamo detainees; and on releasing dozens of detainees who pose no threat, if they ever did, and who have been held far too long without charges or trial.


As things stand, the restrictions in the final bill are expected to resemble the ones in current law that Mr. Obama threatened to block with a veto a year ago.

The Times suggests that vetoing the next NDAA might be appropriate:

Vetoing a military budget bill is no small matter, although other recent presidents have done it. Neither is making dozens of long-serving detainees wait even longer in limbo for no good reason, preserving a recruiting tool for America’s enemies.

Given that the President hasn't vetoed the last two NDAAs over Guantánamo restrictions, it seems unlikely that he'd do so this time around, especially with the current crowded field of other legislative priorities (the "fiscal cliff," farm subsidies, etc.). But there may be no alternative if the President is serious about emptying Guantánamo and feels that the NDAA's current certification requirements (as to future danger, recidivism, etc.) are too onerous to meet. As I've argued elsewhere, the Guantánamo restrictions in the current NDAA are a constitutional exercise of Congress's powers (even though very bad policy), despite the President's signing statement to the contrary. A veto, rather than another signing statement trying to read the restrictions out of existence in the name of avoiding constitutional difficulties, would seem to be the only effective move if the administration can't get Congress to see reason with respect to Guantánamo detention policy. That a veto is likely not going to happen suggests that the Obama administration is less serious about closing Guantánamo than the New York Times is.