Now that Congress has passed a defense spending bill that once again explicitly bans the transfer of Guantánamo detainees to U.S. soil, even for prosecution, President Obama may have lost his last chance to close a prison that has become a worldwide symbol of injustice.
The administration must share some of that blame for taking so long to send a detailed closure plan to Congress, as Sen. John McCain, chair of the Senate Armed Forces Committee, has been urging for months.
Not that any such plan would stand much of a chance on Capitol Hill, where Republican lawmakers have rudely refused for years to consider closure. But it would at least show that the White House was willing to make one last-ditch effort to work with Congress on the measure.
The dilemma now facing Mr. Obama, who has said he will sign the spending bill, is whether he can unilaterally close Guantánamo despite an act of Congress (once he signs the measure into law) to the contrary.
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All we can say is that if he proceeds, he must offer a clear, cogent and persuasive argument, and that may be impossible. He will move not only against the manifest will of Congress, but against popular opinion, as well.
We have expressed ourselves on this issue many times: Guantánamo should be closed because it’s bad policy.
It’s a propaganda tool for terrorists. It’s too expensive, costing roughly 30 times more per detainee than the most secure facilities on the U.S. mainland.
Plus, it’s a huge, ineffective waste of time and resources:
Of the total 779 detainees who have been held, 532 were released by the Bush administration. Of the 112 detainees who remain, only about 10 have been convicted or charged with a crime in military commissions, and all of the convictions from the commissions are either being appealed or have been overturned. Worse, none of the five co-conspirators in the 9/11 attacks have gone to trial, though charges were filed years ago.
In short, we spend too much money to keep it open, America’s justice system gets a black eye, and it doesn’t work.
So why is it still there? The short answer is politics. A Republican Congress that loathes working in tandem with President Obama and sees political profit in taking a (phony) tough-on-terror stance stubbornly votes to keep Guantánamo open despite all the good reasons to close it.
Mr. Obama can declare that the prison camp was opened by executive action under the presidential authority to wage war; Congress was not consulted. Thus, it can be dismantled in the same way. Also, he can argue that the president has ample authority to act as commander in chief, and he is the one —not Congress — who can make tactical decisions regarding detainees. In this view, it’s the legislative branch, not the executive, that’s exceeding its authority by banning transfers.
But the larger question that Mr. Obama must take into account is whether expanding his executive authority despite a law that explicitly bars his action strikes an uneven balance between congressional and executive authority.
It is one thing for the president to take decisive action unilaterally on immigration — which we have supported in the face of congressional inaction — and quite another for him to ignore the will of Congress as expressed in law. Democrats would howl in protest if a Republican president acted in a similar manner.
At this point, Mr. Obama has nothing to risk by offending Congress. That relationship is broken and can’t be mended. But the damage to the constitutional process must be considered. The president should proceed, if at all, with an eye toward all the risks.