“THE PRISON at Guantanamo Bay undermines our national security,” CIA Director John Brennan said in a landmark speech he gave while serving as a White House national security adviser in 2011. “Our nation will be more secure the day when that prison is finally and responsibly closed.”
We agree. Along with Abu Ghraib, Guantanamo represents the dark excesses of the country’s reaction to the Sept. 11, 2001, terrorist attacks. Its symbolism has been used in terrorist propaganda. Congress’s restrictions on shuttering the military prison serve no purpose but to continue the harm this symbol does to the country’s reputation. We, too, are frustrated that, seven years after President Obama ordered the Cuba prison closed and four years after Mr. Brennan insisted that it was a national security liability, Guantanamo still houses more than 100 prisoners.
Yet Mr. Obama should not and, we believe, cannot close the prison unilaterally.
Such a move would ignore the repeatedly expressed will of Congress. Lawmakers have barred spending any money on transferring Guantanamo detainees into the United States and on building them facilities here. The latest version of the National Defense Authorization Act (NDAA) retains these provisions despite strong pushback from the White House.
In a recent Post op-ed, former Obama administration lawyers Gregory B. Craig and Cliff Sloan claimed that the president can ignore these restrictions. Congress, they wrote, “can authorize detentions and military tribunals and broadly regulate the treatment of prisoners of war, but it cannot direct specific facilities in which specific detainees must be held and tried.” To do so, they argue, would violate the president’s constitutional authority as commander in chief. Congress approved the war on terrorism. The president gets to prosecute it without congressional micromanaging.
Yet Congress’s power to direct public spending is deeply embedded in the country’s history and constitutional structure. The principle that legislators control the purse was partially the result of conflicts between British kings and Parliament over the legislature’s refusal to finance ongoing wars.
Moreover, as Mr. Craig and Mr. Sloan admitted, Congress has a say in how wars are waged and how prisoners are treated. This is why lawmakers could ban torture and establish a military commission system. “Would the Constitution permit Congress to enact a law forbidding the President to transfer detainees to ‘specific’ nations with a history of torture? To forbid the CIA from holding al Qaeda prisoners at CIA ‘black sites’? Of course it would,” Marty Lederman, an Obama Justice Department veteran, wrote in a blog post. “But if those laws would be constitutional, then so are the noxious restrictions in NDAA.”
“If Congress may prohibit the President from moving foreign detainees to other places,” he concluded, “Congress can prohibit the entry into the United States of aliens who are members of enemy forces.”
Though the legal basis for unilateral presidential action is murky, the potential for fierce political backlash is not. Just the suggestion that Mr. Obama might attempt unilateral action has led GOP senators to block presidential nominees for posts in the Defense Department. Putting retributive “holds” on nominees is not a prudent way to govern, but provocatively defying Congress would not be, either.
Mr. Obama’s only real option is to keep promoting the issue, continue to draw down the prisoner population through authorized transfers and attempt to work with Congress.