President Donald J. Trump says he’s keeping Guantánamo prison open, but in a signing statement attached to the latest sweeping defense bill also says he has the commander-in-chief’s power to ignore Congress and let a captive to go.
The move borrows from the playbook of President Barack Obama, who cast restrictions on his transfer authority as encroaching on his power to make decisions in the interest of national security.
Here’s how Trump framed it in a Dec. 12 statement accompanying his enactment of the National Defense Authorization Act: “I reiterate the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees would violate constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief.”
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There’s one key difference. Obama asserted the authority in his effort to close the detention facility, which Congress thwarted. Trump made the opposite clear upfront, saying, “I fully intend to keep open that detention facility and to use it for detention operations.” As a candidate Trump vowed to fill the terror prison with new captives but the administration has yet to send even one, leaving the prison population at the last 41 the Obama administration could not relocate to the United States or transfer elsewhere.
That could change early next year if the Trump administration makes good on an Obama-era plea agreement and transfers home a Saudi convict to serve out his sentence at a kingdom rehabilitation center. Under the agreement, admitted terrorist Ahmad al Darbi testified about his time in al-Qaida for the prosecution in two other war court cases, and could be sent home in February.
The National Defense Authorization Act is Congress’ articulation of policy for the Department of Defense. Yet to be adopted is an appropriations bill that would fund the Trump administration’s intended big-ticket item for the base — $124 million for a new, permanent barracks to replace a trailer park for soldiers doing temporary tours of duty at the prison.
The 41-captive prison complex at Guantánamo has a staff of 1,500 troops and civilians to run the Detention Center Zone. The still-unfunded barracks would consolidate 848 soldiers, two to a room, into dormitory-style accommodations. They now live in townhouses and trailer parks around the base.
Congress is currently funding the government on a Continuing Resolution, a temporary measure that expires Dec. 22. It has yet to agree on an overall budget, including military spending. Meantime, “construction cannot begin until there’s an enacted appropriations bill that actually funds the project,” Pentagon spokesman Christopher Sherwood said Thursday.
Depending on when Congress actually funds the barracks, they might be ready for occupancy in 2021, the detention center’s 20th year.