President Obama would be stretching the limits of the Constitution if he moved unilaterally to close the prison at Guantánamo Bay, experts say.
The White House has not ruled out executive action to empty the prison camp, now that Republicans in Congress are poised to reject a plan from the Defense Department for moving detainees to the United States.
The fate of an executive action would come down to the courts, where Republicans and the White House would likely do battle over the Article II powers that the Constitution grants to the commander in chief.
“The debate is, what does the Constitution say?” said Chris Edelson, an assistant professor of government at American University’s School of Public Affairs.
Obama is running out of time to close Guantánamo, which he promised to do during his run for the White House in 2008. On his first day in office, he signed an executive order requiring that the prison be closed within a year, only to be blocked repeatedly by Congress.
Obama supporters argue that Article II gives the president the legal authority to decide not only where to put troops, but also where to hold prisoners.
Republicans reject that argument out of hand.
"That's not my interpretation of the Constitution nor any constitutional expert that I know that doesn't work in the White House,” said Sen. John McCainJohn McCainSenate braces for fallout over Supreme Court fight Republicans seek to lower odds of a shutdown Nunes endures another rough day MORE (R-Ariz.), who supports closing Guantanamo, adding, “of course it's not in his authority.”
If the president uses executive action, McCain told The Hill, “I would want to go to court.”
Republicans said the executive action would violate the letter of the law just like the controversial deal for Sgt. Bowe Bergdahl, which involved Obama releasing five detainees from Guantánamo. The Government Accountability Office (GAO) later found that Obama broke the law by not informing lawmakers of that transfer 30 days in advance.
Deborah Pearlstein, a professor at the Cardozo School of Law, said there would be “no doubt” that the president would have the authority to move the Guantánamo detainees if Congress hadn’t passed a law against it.
“The problem here is that Congress has acted,” she said.
Under the National Defense Authorization Act (NDAA), which the president is expected to sign sometime soon, detainees can’t be transferred into the United States, or to Libya, Somalia, Syria or Yemen.
Edelson said that because Article I of the Constitution gives Congress legislative authority, one could argue that Obama would be disrupting the system of checks and balances by circumventing the law.
“Congress could decide it’s an impeachable offense,” Edelson said, but added that lawmakers are more likely to hold hearings or refuse to confirm any Obama nominees.
With just over 50 of the 112 remaining Guantánamo detainees cleared for release, the debate around closing the facility centers on what to do with dozens of detainees dubbed “too dangerous” to be sent to another country.
The Pentagon has studied prisons in Colorado, South Carolina and Kansas as sites for the prisoners, but moving them there could open the administration up to a legal challenge from the states.
"I think different states are going to do that, the affected states … probably we could join in on that regard," said Sen. Pat RobertsPat RobertsDems mock House GOP over lack of women in healthcare meeting Perdue vows to be chief salesman for US agriculture abroad GOP senator apologizes for mammogram joke MORE (R-Kansas), who is blocking the Army secretary nominee and threatening to block others. "I hope it doesn't come to that."
Pearlstein said a state lawsuit would be unlikely to succeed.
"The problem with that, or a problem with that, is these are federal prisons," she said. "There's simply no constitutional question that the federal government has … control over their prisons."
Legal experts say the more serious challenge would come from lawmakers. Michael Greenberger, former attorney for the Department of Justice, said counsel for both chambers of Congress would be likely to seek an injunction from the courts to keep the president from bringing detainees to the U.S, much like they did when Obama issued his executive actions earlier this year on immigration.
“It would probably go quickly, I think, to the U.S. Supreme Court,” he said. “If Congress seeks an injunction and the lower courts rule in their favor, the government can appeal that and these kinds of issues can be decided very quickly.”
Majority Leader Mitch McConnellMitch McConnellSenate braces for fallout over Supreme Court fight Republicans seek to lower odds of a shutdown GOP torn over what to do next MORE (R-Ky.) has remained tightlipped about what the Senate would do if the president tries to bring detainees into the United States, only telling reporters that “we’ll see what he does.”
Democrats are also in no hurry to support executive action on Guantanamo. Sen. Dick DurbinDick DurbinRepublicans seek to lower odds of a shutdown No. 2 Senate Democrat opposes Trump's Supreme Court pick The Hill’s Whip List: 30 Dems are against Trump’s Supreme Court nominee MORE (D-Ill.) said that he couldn't say if he would back executive action, adding, "we have not heard of any proposal by the administration — I haven't — to circumvent the policy we just voted on, in the authorization."
Sen. Ben CardinBen CardinSenate braces for fallout over Supreme Court fight Democrats step up calls that Russian hack was act of war Making water infrastructure a priority MORE (D-Md.) had more direct advice for the administration, saying that while he supports closing Guantanamo "there's some restrictions in the NDAA concerning that. He's going to have to comply with the legal restrictions.”
If an executive action case were to reach the Supreme Court, some experts say the administration would be on weak footing given past cases on Article II challenges tied to detainee rights during the George W. Bush administration.
But in those cases, Greenberger noted, the administration was trying to keep Guantánamo open, while Obama is trying to close it.
“I think in this situation the administration is on much firmer footing as to commander in chief powers,” he said. “It’s very likely there could be five votes to claim that the decision to bring them back is within his powers of Article II.”
Some legal experts warn a transfer of Guantánamo detainees to the U.S. could create another headache for the administration by giving the prisoners access to the court system.
Joshua Colangelo-Bryan, an attorney at Dorsey & Whitney LLP who has represented Guantanamo prisoners, said one could argue a heightened standard exists when you are talking about detention on sovereign U.S. soil as opposed to a naval station that’s under U.S. jurisdiction.
"There's certainly a strong argument that one has better legal protection against indefinite detention on U.S. soil than at Guantánamo," he said.
Some advocacy groups, such as the American Civil Liberties Union (ACLU), are against Obama issuing an executive order. They’d rather see the president close Guantánamo by transferring the prisoners who have been cleared for release and then reviewing the cases that remain.
“The issue of Guantanamo has always been one not just about the prison, but the injustices it represents,” said Hina Shamsi, an attorney and director of ACLU’s National Security Project.
“We have to keep our eye on addressing the underlying injustice, which is indefinite detention without charge or trial, which continues to undermine our values and standing around the world.”