To Close Guantánamo, Obama Will Have to Test the Limits of Presidential Power

The president took office promising to abandon George W. Bush’s policy of using executive orders to sidestep Congress. Now he’s doing the same.

This photo made during an escorted visit and reviewed by the US military, shows the razor wire-topped fence and a watch tower at the abandoned "Camp X-Ray" detention facility at the US Naval Station in Guantanamo Bay, Cuba, April 9, 2014.   AFP PHOTO/MLADEN ANTONOV        (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
This photo made during an escorted visit and reviewed by the US military, shows the razor wire-topped fence and a watch tower at the abandoned "Camp X-Ray" detention facility at the US Naval Station in Guantanamo Bay, Cuba, April 9, 2014. AFP PHOTO/MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)

In 2007, then-Sen. Barack Obama accused President George W. Bush’s administration of a “clear abuse of power” for claiming sweeping authority for the executive branch to effectively ignore Congress.

Obama promised he would be a different kind of president, one who would not copy his predecessor’s use of executive orders to impose by fiat what he could not do legislatively or copy Bush’s frequent signing of statements to implement only the parts of different bills that he wanted to.

In 2007, then-Sen. Barack Obama accused President George W. Bush’s administration of a “clear abuse of power” for claiming sweeping authority for the executive branch to effectively ignore Congress.

Obama promised he would be a different kind of president, one who would not copy his predecessor’s use of executive orders to impose by fiat what he could not do legislatively or copy Bush’s frequent signing of statements to implement only the parts of different bills that he wanted to.

But in his final 14 months as president, Obama is weighing just those types of unilateral steps to realize his long-sought goal of closing the Guantánamo Bay prison, which would mean flying detainees to military or civilian prisons in the continental United States. The president would make the move even though Congress has passed an array of bills over the past seven years that expressly forbid him to transfer detainees from the detention center to the American mainland.

The White House is expected to unveil its long-delayed plan to close the Guantánamo prison on Friday, a package that will include options for transferring the remaining detainees to high-security prisons in Colorado, Kansas, or South Carolina and an assessments of the related costs and logistics.

With Congress firmly opposed to closing the prison, a unilateral move by Obama offers the only realistic way for him to shutter the controversial facility before his term expires. But it would set up the biggest test yet of his view of presidential authority, which took a hit on Monday when a federal appeals court blocked executive orders designed to shield millions of undocumented immigrants from deportation.

It would also pose a serious political threat to Obama and his fellow Democrats less than a year before Americans go to the polls. Unlike executive action on immigration reform or gun control, there is little public enthusiasm for moving detainees from the U.S. naval base at Guantánamo Bay, Cuba, to a prison in an American state. A unilateral order by Obama would inflame the political right and spark a potentially damaging confrontation with the Republican majority in Congress. Even lawmakers in Obama’s own party are wary of a decision that could undermine Congress’s role as a check on presidential power.

Obama, however, has long held a deep personal conviction on the issue, dating back to his days as a senator. He has argued repeatedly that the prison at Guantánamo provides fodder for extremist propaganda, damages relations with allies, and violates America’s values. His view was echoed by Bush himself in his second term, who said he wanted to close the prison, though he never took steps to shutter the facility.

Since Obama took office, the administration has gradually cut the number of detainees by more than half, from 242 to 112. Of those, 53 are cleared to be transferred to other countries, while the rest are either due to be tried before military commissions or held indefinitely without charge. With the Pentagon dragging its feet on shifting detainees to foreign nations, there is no chance the 53 men will be out of Guantánamo when Obama’s term ends in 2017.

The White House says it will continue to seek a deal with Congress, but spokesman Josh Earnest has refused to rule out executive action to resolve the future of the prison. “I certainly wouldn’t take off the table the ability of the president to use whatever authority is available to him to try to move closer to accomplishing this goal,” he told reporters last week.

Current and former officials acknowledge that administration lawyers have long discussed the constitutional grounds for such executive action on Guantánamo. If Obama goes ahead with the unilateral move, two officials told Foreign Policy that it would be months before any detainees were physically moved out of Cuba.

Obama’s use of executive authority on Guantánamo wouldn’t in itself be a new thing; the president has increasingly tried to enact his agenda through executive orders after growing frustrated with congressional inaction.

In the case of immigration, climate change, and gun control, Obama issued orders after citing Congress’s failure to pass proposed legislation. But on Guantánamo, Obama would be going a step further, overriding laws that specifically bar him from transferring detainees from Guantánamo.

Two prominent former legal advisors in the Obama administration laid out the case for taking unilateral action to close the prison last week, the latest sign the administration is testing the political waters.

The former special envoy overseeing Guantánamo’s closure, Cliff Sloan, and a former White House counsel, Gregory Craig, wrote a commentary on Nov. 6 in the Washington Post arguing that, under his powers as commander in chief outlined in Article II of the Constitution, “the president has exclusive authority to determine the facilities in which military detainees are held.”

The two lawyers added: “Obama has the authority to move forward. He should use it.” Harold Koh, the former top legal advisor at the State Department, made a similar argument last month.

Experts are divided over whether Obama actually has the constitutional authority to take action on Guantánamo. Opponents can point to a 2009 opinion by Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, who wrote that “to the extent Congress wants to place judicially enforceable restrictions on Executive transfers of Guantanamo or other wartime detainees, it has that power.”

But some legal scholars, including Ingrid Wuerth, a professor of law at Vanderbilt University, take a broader view of presidential authority when it comes to detainees.

“The administration could make a pretty good legal argument that he has the commander-in-chief power and Congress does not have the constitutional power to enact these restrictions,” said Benjamin Wittes, a senior fellow at the Brookings Institution who has written extensively on the legal issues surrounding Guantánamo.

The administration would have to be ready for the potential political fallout from a showdown with Congress, which could include cutting funding for White House priorities or even forcing a government shutdown. At the same time, Republicans, who often take an expansive view of executive power, would need to decide how far to go to try to force the White House to cancel the order.

“I think the president could probably muscle this and get it done if he wanted. But he would have to be willing to pay a real cost to do it, and it’s not clear at the outset what that cost is,” Wittes said.

Congressional Republicans and other opponents of housing detainees on the U.S. mainland could try to fight the executive order in the courts, which was the tactic used against Obama’s action on immigration. But it’s unclear what group or individual would meet the legal criteria for filing a lawsuit, as they would have to argue they were directly injured by the executive action, experts said. In the fight over immigration, the case was brought by Texas and 25 other states.

Sen. John McCain, a Republican who has favored closing the prison, believes the president has no authority to shut down the facility unilaterally, his office said. Asked by reporters how Congress would respond to an executive order, McCain said: “Go to court. All we can do is go to court.”

A group that has campaigned against the transfer of Guantánamo detainees, 9/11 Families for a Safe and Strong America, hinted at a possible legal response if the administration tried to take action. Asked if it would file a lawsuit to block a possible executive order, the group’s co-founder, Tim Sumner, told FP: “We will not sit by idly if the administration attempts to fulfill a foolish campaign promise. For now, that is all we will say.”

The legal question of whether Congress can specify — through laws authorizing government spending — where detainees can be held by the U.S. military is largely unchartered legal territory, experts said.

Instead of the courts, the battle over Guantánamo and presidential authority might end up playing out in the political arena, with Congress leveraging the power of the purse to try to force the White House to back off.

A trio of Republican lawmakers, Sens. Pat Roberts (R-Kan.), Cory Gardner (R-Colo.), and Tim Scott (R-S.C.), from the three states with prisons assessed by the Pentagon as possible sites to transfer the detainees, has vowed to head off any unilateral move by the administration.

As a preemptive warning shot, Roberts placed a hold this month on Obama’s nominee for the secretary of the Army, Eric Fanning, over the issue. Fanning was nominated on Sept. 18 and has yet to receive a hearing.

At a press conference last week with his fellow senators from Colorado and South Carolina, Roberts fumed at the idea the administration was ready to send “terrorists from Gitmo” to the military prison at Fort Leavenworth.

“Why do we even have a Congress if the president can issue an executive order on anything and, in this particular case, endanger our national security?” Roberts said. “Then what are we even doing here?”

House Homeland Security Chairman Michael McCaul (R-Texas) said on Sunday that executive action would be “highly reckless and irresponsible” but acknowledged that it might be difficult to reverse.

“He has done this before, and it’s hard to stop this kind of action,” he said of Obama. “I would hope the American people would rise up in numbers so strongly [that the president would have to back down],” McCaul told Fox News Sunday.

Last year, in what may turn out to be a test run for unilateral action on Guantánamo, Obama flouted congressional authority when he approved the swap of five Taliban detainees at Guantánamo in exchange for the release of U.S. Sgt. Bowe Bergdahl, who was held prisoner by the Afghan insurgents. The president failed to notify lawmakers 30 days in advance of the transfer of the Guantánamo inmates, as required by legislation. Some senators accused the White House of breaking the law, but the administration insisted the legislation interfered with the president’s constitutional duty to act swiftly to safeguard the life of an American soldier.

To limit the political backlash over Guantánamo’s closure during the 2016 presidential campaign, Obama could wait to move the detainees out of the base in Cuba until after the November election, one former Pentagon official said. Democratic candidates running for office would not be forced to take a stand on the issue. Under that scenario, Obama would issue an executive order that would move the detainees from the U.S. naval base in Guantánamo to a base in the United States, with only American military personnel involved in the transfer. The detainees would be held at a military prison, such as the facilities at Fort Leavenworth in Kansas or in Charleston, South Carolina.

Upon arriving on the mainland, the detainees would likely have more success arguing for their right to a speedy trial under U.S. law, as they would no longer dwell in the legal limbo associated with Guantánamo, some experts said.

At that point, with pending cases from dozens of detainees in federal courts, rescinding the executive order could become extremely difficult, particularly if state agencies had no role or jurisdiction over an action handled exclusively by the U.S. military, officials said.

“This is a commander in chief moving military detainees from one military base to another military base,” one former Pentagon official said. “Once it’s done, it’s done. What can they [opponents] do about it?”

Human rights groups, who have long condemned the Guantánamo facility as a legal black hole, are skeptical about the idea of moving the detainees to another prison on the U.S. mainland if those detainees are still held without charge.

“Our position has always been that the problem with Guantánamo has been the indefinite imprisonment without trial,” rather than the simple fact of its existence, said Laura Pitter, a senior national security counsel for Human Rights Watch.

“Ideally, they should prosecute those against whom they have evidence of wrongdoing and release the rest,” she said.

Rep. Adam Smith, the ranking Democrat on the House Armed Services Committee, said he believed an executive order from Obama on Guantánamo would be “a step of last resort” that remained a remote possibility.

But if the president took that drastic action — in defiance of a majority backed by both parties — it would cause consternation among Democrats who worry about the executive branch’s steadily expanding power since 9/11, he said in an interview.

“There would be some concern,” Smith said.

Obama may not care. As president, Obama’s signing statements and policies have sometimes resembled Bush’s approach to presidential power relative to Congress. He has invoked commander-in-chief authorities to justify the widespread use of lethal drone strikes abroad and the secrecy surrounding them, despite criticism that in many cases the individuals targeted did not represent an “imminent threat” to the United States.

By attempting to put the Guantánamo prison to rest, Obama would be reinforcing an unintended legacy of his presidency — expanding the boundaries of presidential power.

During Obama’s first term in office, administration officials debated whether the president had the authority to override legislation regarding the prosecution of Guantánamo detainees in civilian federal courts in the United States, according to a new book by New York Times reporter Charlie Savage, Power Wars: Inside Obama’s Post-9/11 Presidency.

A “white paper” by the Justice Department’s Office of Legal Counsel held that the president probably did not have the power to defy Congress on the issue. But Koh, then the top lawyer at the State Department, disagreed. Just because officials had opposed Bush’s interpretation of executive authority to justify warrantless eavesdropping did not mean they should shy away from endorsing Obama’s exercise of presidential power to decide the fate of detainees at Guantánamo, Koh argued at the time, according to the book.

“Democrats get to be president, too,” Koh said.

FP reporter Paul McLeary contributed to this article. 

Photo credit: Mladen Antonov/AFP/Getty Images

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