President Obama is on a collision course with congressional Republicans over the Guantánamo Bay detention facility, with increasing chatter in Washington that he might seek to close the prison through executive action.
The administration is expected to hand over a plan to Congress for shuttering the Cuban prison, in an attempt to fulfill a long-standing campaign pledge before Obama leaves office.
But even as Obama seeks cooperation from Congress, White House press secretary Josh Earnest has refused to rule out unilateral action to close the prison camp.
Earnest on Friday said Obama "certainly wouldn’t take off the table the ability of the president to use whatever authority is available to him."
There are 112 detainees left at the prison, including dozens that are considered “too dangerous to release” that would need to be transferred to the U.S. mainland.
Congressional Republicans are sending strong signals that any plan to close Guantánamo Bay is dead on arrival.
Sen. Cory Gardner (R-Colo.) suggested that the president is breaking the law by even having Defense Department officials study possible U.S. alternatives to the Cuban prison.
“Look, the law is very clear. The law states no money shall be made available, shall be used, can be designated for the assistance of the transfer of Guantanamo Bay detainees,” he said.
Gardner added that he sent Obama a letter asking, “what basis in law does he believe he has to violate the law,” and hadn’t received a response.
Sen. Pat Roberts (R-Kansas) has called Obama “damn stubborn” about closing the prison camp.
“It just raises all this dust in opposition,” he added. “It’s a bad idea, really a bad idea. I hope those of us in the Congress will maintain our vigilance.”
Roberts has already placed a hold on Obama’s Army secretary nominee, Eric Fanning, over Guantánamo, and is threatening to “place holds on any nominee necessary” to keep the prison open.
The administration's refusal to rule out circumventing Congress also appears to have antagonized Arizona Sen. John McCain, perhaps the biggest GOP advocate for finding a way to close the prison.
McCain said that the president “lies when he says that he really wants to close Guantanamo with the cooperation of Congress, because he’s never sent over a plan.”
McCain, who chairs the Armed Services Committee, added that if the White House goes it alone, lawmakers would attempt to reverse the decision including using “funding mechanisms.”
The president would also need to win over Republican leadership if he wants any plan for closing Guantánamo to get floor time — something that could be a tall order.
Senate Majority Leader Mitch McConnell (R-Ky.) has long opposed bringing detainees into the United States, and Speaker Paul Ryan (R-Wis.) this week declared that, “Guantánamo detainees should be in Guantánamo.”
But Sen. Dianne Feinstein (D-Calif.), who supports closing the facility, is among a growing number of liberal lawmakers who are pressuring Republicans to lift the ban on transferring detainees into the country.
“Facilities in the United States are up to the task. There’s no reason to think a Guantánamo detainee is any more likely to escape from Supermax than any other federal prisoner,” she wrote in a New York Times op-ed earlier this month. “Congress should take tangible steps to close Guantánamo.”
Supporters of closing the facility argue that it is a “stain” on the country’s reputation and an easy recruiting tool for terrorist groups including the Islamic State in Iraq and Syria (ISIS.)
But the president is also facing outside pressure on the issue. The Republican National Committee (RNC) launched digital ads Friday linking Hillary Clinton, the Democratic presidential frontrunner, to the fight over the prison.
“Hillary Clinton’s support for President Obama’s plan to unilaterally close Guantanamo Bay, and bring terrorists to U.S. soil, is the latest example of how she’s failed the Commander-in-Chief test and can’t be trusted to keep America safe,” RNC Chairman Priebus said in a statement.
Clinton has long support closing Guantánamo, including co-sponsoring legislation during her time in the Senate that required the facility to be closed and would have allowed for detainees to be brought into the United States.
Separately, the conservative Wall Street Journal editorial board referred to the administration’s maneuver as “decision first, the law later” adding that the president’s “inability to negotiate honestly with the legislature is a hallmark of his Presidency.”
Progressive groups and key U.S. allies have been pushing for years for the United States to close the prison, but whether Obama can do so without congressional approval is murky.
Earnest has sidestepped questions about whether the administration believes it can legally leapfrog Congress.
Republicans, meanwhile, point to a 2014 Government Accountability Office (GAO) report that found that the administration broke the law when it transferred Taliban commanders out of Guantánamo Bay without notifying Congress 30 days in advance.
The latest policy scuffle comes as the Senate is poised to pass the National Defense Authorization Act (NDAA) for a second time next week, which will lock in strict limitations on transferring the detainees until virtually the end of Obama’s term.
Under the legislation — which passed the House with the support of 135 Democrats — the ban on transferring Guantánamo detainees to the United States is continued for another year.
The legislation bans transfers to Yemen, Syria, Libya and Somalia, as well as requiring Defense Secretary Ashton Carter to certify that any transfers are in the interest of national security.
While the administration vetoed the first NDAA largely over an extra $38 billion in war funding, the president also pointed to the restrictions on Guantanamo Bay in explaining his decision.
The White House, however, has stopped short of saying that Obama would veto the bill for a second time.
McCain said he doesn’t anticipate the president would send the bill back to lawmakers again.
“I don’t think so,” he said. “They shouldn’t. It would be a very weak argument because I’ve asked them for a plan and they haven’t given me a plan.”