Guantanamo: Legislation

Unilateral Executive Action to Close Guantanamo? Bah!

By Benjamin Wittes
Friday, October 10, 2014, 10:32 AM

The estimable Carol E. Lee and Jess Bravin, over at the Wall Street Journal, are reporting this morning that:

The White House is drafting options that would allow President Barack Obama to close the detention facility in Guantanamo Bay, Cuba, by overriding a congressional ban on bringing detainees to the U.S., senior administration officials said.

Such a move would be the latest and potentially most dramatic use of executive power by the president in his second term. It would likely provoke a sharp reaction from lawmakers, who have repeatedly barred the transfer of detainees to the U.S.

The discussions underscore the president’s determination to follow through on an early campaign promise before he leaves the White House, officials said, despite the formidable domestic and international obstacles in the way.

Administration officials say Mr. Obama strongly prefers a legislative solution over going around Congress. At the same time, a senior administration official said Mr. Obama is “unwavering in his commitment” to closing the prison—which currently has 149 inmates detained in connection with the nation’s post-9/11 war on terrorism—and wants to have all potential options available on an issue he sees as part of his legacy.

Let me be blunt about this: I will believe this the day it happens, and not a moment before.

If Obama were serious about using the power of his office to close Guantanamo, he would have done it already. He would have vetoed one of the bills that have carried the transfer restrictions. He would have signaled clearly in one of his earlier signing statements that he reserved the right to defy the relevant provisions---and done so. He would have used his considerable negotiating leverage in his dealings with Congress to work his will at a substantive level on the relevant legislation. He has not done these things, because closing Guantanamo---while a sincere priority, I am sure---has always been a secondary or tertiary priority. It's a priority that has yielded to health care and to other national security needs and concerns. And so it will yield again to his higher-order priorities.

It is costless for the administration to float to reporters that it is "drafting options" for unilateral action in this area. It signals seriousness about reviving the matter. I wouldn't be surprised to see more such stories. I will be very surprised, however, to read the one that says the president has actually signed an order to proceed with Guantanamo closure without Congress on board. Yes, I know: political calculations may be different after the mid-terms; the costs to Obama of action will be less. But even after this last election, Obama will still need to get things done---ISIS fight appropriations, for example, or authorization. The question is whether Obama will want to gum up the works on everything over where he stores a small number of people, a matter on which nearly all Republicans and most Democrats will oppose him. He won't. If he were willing to stick his neck out on this issue, he wouldn't have spent the last six years protecting it from the axe.