Congress once again overwhelmingly has passed a spending bill that seeks to block President Barack Obama from closing the military prison at Guantanamo Bay, and once again, Obama, after a bit of pouting, looks likely to sign it. That members of Congress have an irrational and destructive not-in-my-backyard fear of transferring Guantanamo detainees to prisons on American soil is not a new phenomenon. Obama made the promise to close Guantanamo one of his first as president, and Congress has sought to stop him continually since. What’s changed, though, is the increased urgency for Obama, as his second term comes to a close, to exercise his wartime authority as commander in chief to close the prison unilaterally..
Congress once again overwhelmingly has passed a spending bill that seeks to block President Barack Obama from closing the military prison at Guantanamo Bay, and once again, Obama, after a bit of pouting, looks likely to sign it. That members of Congress have an irrational and destructive not-in-my-backyard fear of transferring Guantanamo detainees to prisons on American soil is not a new phenomenon. Obama made the promise to close Guantanamo one of his first as president, and Congress has sought to stop him continually since. What’s changed, though, is the increased urgency for Obama, as his second term comes to a close, to exercise his wartime authority as commander in chief to close the prison unilaterally..
Obama earlier this fall vetoed a defense appropriations bill that contained the prohibition on spending to transfer Guantanamo detainees to the United States, though he rejected it for other reasons. This week, Congress sent him a new version with the Guantanamo prohibition he intends to sign. Meanwhile, though, the Pentagon reportedly has crafted a plan for how to close the prison, that calls for transfers of about half the remaining 112 detainees to other countries and half to maximum security prisons in the United States. The report outlines the advantages and disadvantages of several facilities in Colorado, Kansas and South Carolina, according to the Associated Press, and it has set off a predictable firestorm of protest from congressmen and senators representing those communities.
The idea that these Guantanamo detainees present a security risk beyond what maximum security prisons already deal with is absurd. One of the prisons in Colorado under consideration by the Pentagon already houses Unabomber Theodore J. Kaczynski and Sept. 11 plotter Zacarias Moussaoui. We have facilities secure enough to ensure that these detainees are neither flight risks nor threats to other inmates or corrections officers. Yet the fear they are somehow so dangerous they cannot be allowed on American soil is so deeply ingrained in Congress there appears little chance it will ever be assuaged.
Meanwhile, though, Guantanamo continues not only to strain America’s relations with its allies — just this week, the Organization for Security and Cooperation in Europe, which counts all our NATO partners as members, issued a 278-page report on violations of human rights and international law at Guantanamo and urged the facility’s immediate closure — but also act as a potent tool for recruitment of our potential enemies into groups like al-Qaida, the Taliban and Islamic State. The prison is a recurring motif in jihadist literature, and an undersecretary of defense testified this year that Islamic State’s choice to clothe prisoners it executed in orange jumpsuits is believed to be a reference to the prison. Even former President George W. Bush concluded in his memoir that the prison was “a propaganda tool for our enemies and a distraction for our allies.” …
Members of Congress can dispute whether Guantanamo poses such a strong risk, as Republican Sen. Tom Cotton did in February, but ultimately that is not their judgment to make. The Obama administration has concluded it is a national security risk, as the Bush administration did before, and since it exists in the context of a war authorized by Congress in the wake of the Sept. 11 attacks and ongoing since, it is up to the president to make that determination. Congress has the power to declare war, but the president has the power to determine how it is waged.
Two former Obama administration lawyers made a persuasive argument in a Washington Post op-ed that Congress cannot use its power of the purse to micromanage a decision such as where wartime detainees should be held, and that as such, he can legally transfer the prisoners and close the facility despite the expressed wishes of the legislative branch. California Sen. Dianne Feinstein stated the argument more succinctly: Guantanamo was built without Congressional approval, she said, and surely it can be taken down without it.
In the wake of an appeals court decision questioning Obama’s use of executive authority on immigration, now might not seem like the time to push the envelope on Guantanamo. But the reality is, it’s now or never.
We have no reason to believe the next Congress will behave any more rationally on this issue than the current one. Closing Guantanamo is the kind of potentially unpopular but absolutely necessary decision for which a lame duck president is uniquely suited.
By all means, Obama should make a final effort to work with potential allies such as Sen. John McCain to muster congressional support for his plan, but come what may, he should not leave office with this task undone.
— Baltimore Sun