Obama Says He May Ignore Congress Limits on Guantanamo Transfers

  • Congressional restrictions could violate constitution, he says
  • President locked in battle with Congress over executive power

Hooded protestors take part in a demonstration against the Guantanamo Bay detention facility on Jan. 11, 2015, outside of the White House in Washington.

Photographer: MANDEL NGAN/AFP/Getty Images

President Barack Obama said on Wednesday that he may ignore fresh congressional restrictions on transferring detainees from the U.S. prison at Guantanamo Bay, setting up another confrontation with Republicans over the limits of his power.

“The executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine when and where to prosecute them,” Obama said in a statement Wednesday after signing a national defense policy bill that includes
the restrictions. He called restrictions on prisoner transfers a potentially unconstitutional violation of presidential authority.

The president, he said, must have flexibility to decide “when and where to transfer" detainees at the prison, "consistent with our national security and our humane treatment policy.”

Obama’s threat to exert his powers in contradiction to congressional direction comes while he’s locked in a number of legal and rhetorical battles with Republicans over his use of executive power to act in areas where Congress has not, including immigration and environmental rules.

Long-Running Debate

Obama promised to close the prison when he first ran for president in 2008 and he has engaged in a running debate with lawmakers, mostly Republicans, over the future of the facility set up after the Sept. 11 terrorist attacks. 

Congress has regularly added language to the defense authorization prohibiting the administration from spending any money to find alternative detention facility in the U.S. and restricting the president’s ability to transfer detainees to other countries. He’s also been stymied by the unwillingness of other countries to take custody of prisoners.

Over the past two years, 57 detainees have been transferred to other nations, according to the White House. Just over 100 remain at the prison, including Khalid Sheikh Mohammed, the self-described mastermind of the Sept. 11 terrorist attacks and his four co-defendants.

Constitutional Conflict

Obama said in his statement that congressional restrictions on prisoner transfers could violate the constitutional separation of powers principle in some circumstances, and that he was prepared to “implement them in a manner that avoids constitutional conflict.”

“It is imperative that we take responsible steps to reduce the population at this facility to the greatest extent possible and close the facility,” he said.

Under the defense policy bill, which passed the Senate this month on a vote of 91-3, the Guantanamo prison would continue to operate until Congress receives and approves a plan for closing it. More than four months after saying the plan was almost complete, the White House has yet to produce it.

Senator John McCain, an Arizona Republican and chairman of the Armed Services Committee, who supports closing the prison, has faulted the Obama administration for taking too long to provide a viable proposal.

The administration has delayed the plan’s release as it has sought a suitable facility in the U.S. to house detainees at the island prison and calculated the costs involved. The Pentagon has looked at military prisons in Kansas and South Carolina. Most Republicans, and several Democrats, in Congress object to Obama’s proposal to transfer detainees to facilities on U.S. soil.

“It turns out, the reality of closing the secure detention facility is a lot harder than making promises on the campaign trail,” Senate Majority Leader Mitch McConnell said in a statement last week. “That fact that the president has never been able to present any kind of serious plan to Congress seems to say a lot.”

House Speaker Paul Ryan said on Bloomberg’s "With All Due Respect" on Nov. 10 that Obama doesn’t have the authority to close the prison via executive action.

"It’s just that clear," Ryan said.

Asked about Obama’s statement on Wednesday, a Ryan spokesman, Doug Andres, said in an e-mail: "The law is the law."

Before it's here, it's on the Bloomberg Terminal.