Just as President Barack Obama is planning to send Congress his plan to close the Guantanamo Bay prison this year, leaders of the military say it will not transfer any detainees to the U.S., unless the law prohibiting such transfers is changed.
Lt. Gen. William Mayville Jr., director of the Joint Chiefs of Staff, said as much in a letter to Congress last week, which I obtained. Mayville's letter gets to the heart of a knotty constitutional issue on Guantanamo: Does Obama have the authority to close the facility without the consent of Congress?
Writing to 16 House members who served in the military, Mayville writes: "Current law prohibits the use of funds to 'transfer, release or assist in the transfer or release' of detainees of Guantanamo Bay to or within the United States, and prohibits the construction, modification or acquisition of any facility within the United States to house any Guantanamo detainee. The Joint Staff will not take any action contrary to those restrictions."
To be sure, Mayville says the Joint Staff agrees with Obama's policy to close the prison, calling his goal a "responsible end to holding detainees at Guantanamo."
Unlike Mayville, Obama himself has been coy on whether the law prevents him from closing Guantanamo. In December at his year-end press conference, the president said, "We will wait until Congress has definitively said no to a well-thought-out plan with numbers attached to it before we say anything definitive about my executive authority here."
Some lawyers and former Obama administration officials have sketched out rationales for unilateral action, arguing that Obama's inherent authority as commander-in-chief of the military gives him the power to determine where military detainees can be held.
Obama has transferred 151 detainees since 2009 to other countries, but since 2010 Congress has prohibited the transfer of detainees to U.S. territory. The remaining 91 detainees at Guantanamo include Khalid Sheikh Mohammed, the mastermind of the 9/11 attack, and other top al-Qaida planners, like Abu Zubaydeh, who have been deemed by military leaders to be too dangerous to send to other countries.
Thomas Joscelyn, a senior fellow at the Foundation for Defense of Democracies, told me: "The problem has been that you don't have a bunch of innocent goat herders there. You have a number of individuals who pose some degree of threat."
Since it's too dangerous to send the highest-risk detainees to other countries, the president is hoping to persuade Congress to lift the restriction on sending these detainees to the U.S. Last month, Secretary of Defense Ash Carter said he had submitted a plan to the White House to do just this. "Not everyone in GTMO can be safely transferred to another country, so we need an alternative," he said. "I have therefore framed for the president a proposal to establish an alternative location. That plan will propose bringing those detainees to an appropriate, secure location in the United States."
Raha Wala, senior counsel for defense and intelligence at Human Rights First, said that Mayville's insistence on closing Guantanamo " responsibly within the law" reinforces "the importance of the president to work within his existing authority to speed up the transfers of cleared detainees and administrative reviews of non-cleared detainees, so they can make progress towards closing Guantanamo." Wala also told me however that it was "unclear" whether the president had the legal authority to transfer detainees to the U.S. without consent from Congress.
For now, proponents of keeping Guantanamo open are pleased by Mayville's response. Representative Mike Pompeo, a Republican who organized the initial letter on Guantanamo to which Mayville responded, told me: "We are pleased the Joint Staff's legal analysis is consistent with ours. We look forward to the president presenting his plan to see if he intends something consistent with the law."
When Obama does present his Guantanamo plan to Congress, it will be an important moment for the republic. Obama campaigned in 2008 for the presidency with a promise to curtail his predecessor's expansive interpretation of wartime authorities. During his presidency, however, he has asserted the executive branch's authority in some cases to override the instructions of Congress.
The question now is whether Obama will break his campaign promises on presidential power to fulfill his campaign promise to close Guantanamo.
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