Legal Expert On Obama Proposal To Move GITMO Detainees

A must-read piece in The Hill today explains, “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. But if Obama goes it alone, he would do so in defiance of laws passed by Congress that explicitly bar him from transferring Guantánamo detainees into the country. . . .

"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 McCain (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.”

The Hill notes that even some Senate Democrats acknowledge that Congress has made its position clear in law, prohibiting the transfer of Guantanamo detainees to the United States. “Democrats are also in no hurry to support executive action on Guantanamo. Sen. Dick Durbin (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 Cardin (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.’”

Aside from the fact that the president is barred by statute from transferring these detainees, there are also many practical reasons not to do so, as Republicans have long argued.

The Hill writes, “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.”

The AP adds, “Groups like Amnesty International and the American Civil Liberties Union argue that moving the terror suspects to U.S. soil doesn't end the policy of indefinite detention.

“Republican lawmakers who want the detainees to stay at Guantanamo Bay, Cuba, agree. They argue that extremists will use the detention without any filing of charges as a recruiting tool whether the terror suspects are in Cuba or at a U.S. prison some have dubbed ‘Gitmo North.’ . . .

“Tina Foster, a New York lawyer who represents Guantanamo Bay detainees, said closing the prison is nothing more than a public relations measure. ‘It does absolutely nothing to address the continued detention of men who have now been detained for 15 years without trial,’ she said. ‘The real danger posed by bringing detainees to U.S. soil is that it opens the door to indefinite detention without trial on U.S. soil.’ . . .

“Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee, said Thursday that moving detainees to the U.S. would not remove the terrorists' recruitment tool. ‘President Obama's pledge to shutter the detention facility at Guantanamo was always based on the notion that softening America's image abroad would somehow soften our enemies' resolve,’ Grassley said. ‘The headlines every day remind us that that's not the way it is.’

“Sen. Jim Inhofe, R-Okla., agreed, saying moving detainees to U.S. lockups won't end the extremists' propaganda campaign against America. ‘The propaganda war will simply shift to whatever facility these terrorists are brought to in the United States, allowing them to engage in a whole new propaganda campaign against “GITMO North,” ‘ Inhofe said on the Senate floor this week.”

As Senate Majority Leader Mitch McConnell said in January 2010, “[W]e already have a place to put these detainees. Why would we want to create a new one?

“The administration’s answer to this question is that by closing Guantanamo we’d quiet our critics at home and in Europe who view it as an affront. They also say that we’d be removing it as a propaganda tool for Al Qaeda. But both arguments are absurd, since the policy that’s most offensive to our critics is the policy of indefinite detention, something the administration has already indicated it will continue either way. And the notion that Al Qaeda would be satisfied if we simply moved Guantanamo to the Midwest is laughable.

“Al Qaeda terrorists were at war with us long before we started putting them in Gitmo. They won’t lay down their arms or run out of grievances if we move it . . . . If it’s not Guantanamo, it’s something else.

“So it’s hard to see how moving Guantanamo would make any difference to our critics either at home or abroad. But it’s easy to see how it would make America less safe — starting with the fact that the moment terrorists set foot on U.S. soil they would likely gain many of the same rights and privileges of U.S. citizens, including possibly the right to sue their way to freedom. This alone should be reason enough to keep them off our shores and far away from our communities.

“Terrorists don’t deserve the same legal rights that the Americans they’re targeting enjoy. We should be focused on stopping them, not defending them. And Americans would rather their tax dollars be spent preventing attacks from terrorists than providing them with government lawyers. . . . The fact is, as long as we remain at war with Al Qaeda and until we hear a better option, Guantanamo is the perfect place for terrorists.”

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