Constitution Check: Is the rising cost Obama’s last hope for closing Guantanamo?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the continuing impasse over closing the war-on-terrorism detention facility at Guantanamo Bay and how powerful Congress can be when it uses its generally worded authority.
THE STATEMENTS AT ISSUE:
“Now, 127 prisoners remain at Guantanamo, down from 680 in 2003…. President Obama’s goal in the last two years of his presidency is to deplete the Guantanamo prison to the point where it houses 60 to 80 people and keeping it open no longer makes economic sense.”
– Helene Cooper, reporter for The New York Times, in an article January 6 discussing the Obama Administration’s “accelerated pace” of transferring prisoners out of the U.S. military prison at Guantanamo Bay, Cuba.
“To get the prisoners down to a total of 60 to 80 guys would bring the per-prisoner per-year cost to something like $5.5 million per year forever – or at least as long as the Congress insists that those prisoners have to be held at that one specific, super-expensive, decrepit prison.”
– Rachel Maddow, on her television show on the cable network, MSNBC, on January 6. Her guest that evening, Miami Herald reporter Carol Rosenberg, responded by saying: “Congress doesn’t seem to mind to pay the bill. It is huge in terms of the per-prisoner cost.” More than three years ago, Rosenberg had written that Guantanamo was “the most expensive prison on earth.”
WE CHECKED THE CONSTITUTION, AND…
Amid the current political debate about whether President Obama is making immigration policy with excessive use of his Executive Branch power, it might be forgotten that the Constitution gives Congress – in about a dozen words – sweeping authority to control who can actually enter the United States and stay here. And the continuing impasse over the President’s goal of closing the war-on-terrorism detention facility at Guantanamo Bay illustrates just how powerful Congress can be when it uses its generally worded authority.
For more than four years, Congress has stymied the Obama plan to close Guantanamo by barring the transfer of any prisoner from there to the mainland of this country, for any reason, even criminal prosecution. That is presumably an exercise of its control over the nation’s borders, using the constitutional grants of authority “to regulate commerce with foreign nations” and “to establish an uniform rule of naturalization.”
The President has said repeatedly that he would prefer that Congress lift those restrictions, because he otherwise has only limited options to move toward the shutdown of Guantanamo. The one option he seems to be using lately, at a faster pace, is to have his diplomatic envoys do more to encourage other countries to accept transferees from Guantanamo. Congress, of course, has no objection to that approach, but it is unwilling to relax the ban on shifting anyone to the United States (even though some other countries reportedly have told the U.S. State Department that they would be willing to accept more Guantanamo transferees if the U.S. accepted some of them on its own soil).
With both houses of Congress now in control of Republican majorities, the chances of relaxing the Guantanamo prisoner ban appear to be remote at best. The ban presumably will be renewed, as it has been, in each new annual Pentagon funding legislation.
Congress, no doubt, is well aware of the cost of keeping the detention facility open. Last spring, when the President again spoke of his desire to close it down, he estimated the per-prisoner annual cost at $900,000. Later in the year, with the declining prisoner population, that had risen to about $2.7 million. And now, if the President’s current goal of continuing to arrange transfers to other countries succeeds as intended, that cost might more than double.
Even those increases in cost do not take account of the need, cited by the Pentagon, to spend more each year to do the necessary maintenance and repair of the aging Guantanamo facility so that it can continue to function.
This month marks the 13th anniversary of the first transfers of war-on-terrorism suspects to Guantanamo after being captured abroad – mainly, in Afghanistan and Pakistan – as U.S. military operations built up in those countries. Last November marked the 13th anniversary of President George W. Bush’s order setting up a system of military tribunals to try war crimes cases at Guantanamo, and yet there have been fewer than ten convictions since then. At the present time, only 10 of the prisoners still there are facing war crimes charges – including the five who are accused of plotting the terrorist attacks of September 11, 2001.
If the Obama Administration does succeed in getting the prisoner population down to about 80 over the next two years, that will include those who are awaiting war crimes trials, plus some 70 others who, though not charged with any crime, are considered by U.S. authorities to be potentially too dangerous to be released.
At some point, and it may be imminent with the end of U.S. military operations in Afghanistan, lawyers for some of those remaining at Guantanamo are going to begin filing new court challenges to continued detention on the theory that the 2011 resolution authorizing anti-terrorism action by the U.S. government is running out. There are proposals in Congress to renew it or to replace it, with new authorization specifically targeting the Islamic State movement in Iraq and Syria. Republican control of both houses of Congress probably makes it more likely that some new detention authority will be enacted. But, if so, where will any of those who are detained be imprisoned?
The President presumably has authority to decide against transferring any new detainees to Guantanamo – unless Congress were to direct that as the only destination.
Thus, it may well be that, if Guantanamo’s escalating cost is not enough to bring about the actual closing of that facility, it may have a lengthening history, continuing to be an emblem of a stubborn constitutional impasse.
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