by Rick Moran
President Obama is seriously considering defying Congress and closing the terrorist prison camp in Guantanamo, Cuba. He is casting about for a legal justification to bypass the legislature and close the facility via executive action.
Did you expect anything else?
By law, the president cannot use any funds appropriated by congress to close the facility or move the prisoners to the mainland. But when has the law ever stopped this president from doing what he wants?
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.The principle involved has nothing to do with whether the terrorists would be adequately locked up in a supermax prison on the mainland, or the reputation of the US, or even a recognition of the opinions of foriegn governments. This is as clear a separation of powers issue that you will find in American history. Congress has denied the executive branch funding to close the prison camp. If the president finds other means to fund the transfer of prisoners to the US mainland - and there's probably a slush fund or two in the government that would be available - it would make congress irrelevant.
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.”
What should be most worrisome is that future presidents are going to have a plethora of precedents to use executive authority on a wide variety of issues. Any time they suffer a defeat in Congress on one of their pet issues, they can simply use their executive authority to ram it through the government anyway. Is this how dictatorships come about? It certainly appears that this is the direction we're headed.
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