Why executive action may not solve Guantánamo for Obama

Ahead of his final State of the Union address Tuesday night, President Obama has revived the debate over a campaign promise he has struggled to fulfill since the first year of his presidency: the closure of the Guantánamo detention center.

In his first month in office in 2009, Mr. Obama signed an executive order to close the military prison – which held 245 detainees at the time. But closing Guantánamo has been much more difficult in practice, and experts say it is only going to get more difficult as the prison’s population dwindles, because the detainees who are hardest to relocate will be left.

Congress has found a rare bipartisan consensus in objecting to the transfer of Guantánamo prisoners to facilities in the United States: In November, the Senate voted 91 to 3 to pass a bill extending this ban. And so in recent days the White House has suggested it may resort to executive action to close the detention center, which Obama has called a national security threat and a propaganda tool for terrorist organizations like Al Qaeda and the Islamic State.

Obama has increasingly favored executive action in his second term to circumvent the Republican-led Congress, crafting actions on immigration, gun control, and climate. But some say closing Guantánamo through executive action will be even more difficult.

"We're sympathetic to Obama's goals of closing Guantánamo and dealing with these people,” says Robert Spitzer, chair of the political science department at the State University of New York (SUNY), Cortland. "But in our eyes, he doesn't have the constitutional power to just roll past [Congress]."

Currently, there are 103 detainees in the prison. Almost 800 prisoners have passed through its doors since it opened 14 years ago this week inside the US naval station. The majority of the detainees, suspected of participating in terrorism, are essentially being held as prisoners of war, whereby they can be held indefinitely without charge or trial.

Almost half the detainees are moving through the Periodic Review Board process, a multiagency panel convened since 2013 to evaluate prisoners and determine if they can be transferred out of the prison without jeopardizing public safety. Despite delays at almost every stage of that process, experts think that the PRB will gradually reduce the detainee population this year.

But even if that happens, Obama still faces a challenge over what to do with the prisoners who are deemed too dangerous to transfer abroad, but whom the administration doesn’t have sufficient evidence against or the will to prosecute. There are currently 49 detainees being held in indefinite detention and not recommended for release, according to a New York Times database.

"What we're urging is that the president focus on working with Congress to really figure out what to do with those final batch of detainees who can’t be transferred abroad," says Raha Wala, a national security expert for Human Rights First, a nonprofit organization that supports closure of the prison. "If Congress does not cooperate with the president at that point in time, there will have to be a serious discussion about what the president's authority is to move forward."

But what executive powers the president has in that situation isn’t clear. Gregory B. Craig, a former White House counsel, and Cliff Sloan, a former Guantánamo closure envoy, argue that it is within Obama’s power to transfer detainees.

"The determination on where to hold detainees is a tactical judgment at the very core of the president's role as commander in chief, equivalent to decisions on the disposition of troops and the use of equipment," they wrote in an op-ed for The Washington Post in November. "The question here is not whether the president can unilaterally take the nation to war or hold detainees without congressional authorization. The question is whether Congress can tell the president where military detainees must be held. The answer is an emphatic no."

Dr. Spitzer of SUNY Cortland disagrees. Yes, the president has the power to interpret vague congressional law in a way that achieves his political ends, he says – which Obama has done previously. But Congress has passed legislation that is too explicit in the objections to transferring Guantánamo prisoners to the US for Obama to work around it, he argues.

“[Obama’s] desire to close Guantánamo might prompt him yet to do something that may exceed the powers he has,” Spitzer says.

US Attorney General Loretta Lynch suggested in a House Judiciary Committee hearing in November that the administration was planning to comply with congressional law as it seeks to close the detention center.

Stephen Vladeck, a professor at the American University Washington College of Law and a Guantánamo expert, says Obama has two options if he wants to empty the prison this year: either find a way to transfer all the detainees overseas, or strike a deal with Congress, which may require him to give up more than he wants to.

"He really is caught between a rock and a hard place," says Professor Vladeck.