With only 14 months left in office, President Obama is set to issue an executive order in what could be the most aggressive use of his authority to date: unilaterally closing the federal detention facility in Guantanamo Bay, Cuba.
“At this point, I would not take anything off the table in terms of the president doing everything that he can to achieve this critically important national security objective,” White House press secretary Josh Earnest told reporters earlier this month during a briefing.
The administration is likely to submit a plan for how it would shutter the controversial site to Congress in the next few weeks, if not days. There are still 112 detainees at Guantanamo, of whom 53 have been deemed eligible for transfer.
The prison has cost the American taxpayers nearly $5 billion since it opened in 2002, with an average price tag of around $495 million every year for the past five years, according to the American Civil Liberties Union.
Obama pledged during his 2008 campaign that he would close the detention facility; he has since repeatedly promised to take action, citing the exorbitant cost of running the prison and its use as a recruiting tool for terrorist organizations around the globe.
His plan, however, could be reconsidered in light of the latest attack by ISIS in Paris, which killed 129 people and injured 352—a massacre that French President Hollande has called an “act of war.”
Republican and Democratic majorities in Congress have passed multiple laws to check the president’s ability to close the site. The latest came earlier this month when Congress overwhelmingly approved the fiscal 2016 National Defense Authorization Act (NDAA).
The $607 billion policy roadmap for the Pentagon contains several provisions aimed at stopping the administration from shutting down the facility, including a ban on bringing detainees into the United States.
Obama is expected to sign the bill later this month, making a unilateral attempt to shutter the prison his last resort before his term expires. Such a move would set the stage for an enormous test of his presidential power, which took a blow last week when a federal appeals court blocked Obama’s executive order to stop the deportation of millions of undocumented immigrants.
Capitol Hill Democrats have expressed modest support for an executive order on Guantanamo, waiting to see the administration’s plan before they fall in line behind their party’s leader. Republicans in both chambers have already begun to dig in their heels, signaling they would challenge the administration on a variety of fronts.
Senate Majority Leader Mitch McConnell (R-KY) demurred on what action the Senate might take against the president, telling reporters last week, “We’ll see what he does.” Senate Armed Services Committee chair John McCain (R-AZ), a proponent of closing Guantanamo, has threatened a court battle if Obama tries to circumvent Congress.
Meanwhile, the Pentagon has dispatched a small team in three states to survey existing military detention sites as possible alternatives to Guantanamo. GOP senators from Colorado, Kansas and South Carolina have vowed to use every legislative tool available to them to blunt the White House. They believe that moving terrorists into the U.S. amounts to putting a big, red bulls-eye on the facilities and the surrounding communities for other extremists to target.
Sen. Pat Roberts (R-KS) has placed a hold on Obama’s nominee to be the next Army secretary, a hint of how lawmakers could potentially jam up the administration. Newly elected House Speaker Paul Ryan (R-WI) has also spoken out against a possible go-it-alone approach.
“He can’t. He [Obama] doesn’t have the authority to do it,” he said in an interview on Bloomberg TV’sWith All Due Respect before the last GOP presidential debate.
The “language is very clear that he can’t transfer the prisoners,” Ryan added, noting the 2016 NDAA text was similar to the kind Democrats put in the bill when they ran Congress.
“The law is the law; it’s just that clear,” he said.
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Between Obama’s desire to burnish his legacy and the GOP’s strategy to make sure Obama doesn’t do “more damage” while still in office ahead of the 2016 presidential election, a major Constitutional showdown is brewing.
In a recent Washington Post op-ed, former White Counsel Gregory and former State Department Guantanamo envoy Cliff Sloan, argued the president should ignore the restrictions imposed by Congress.
The president “in his capacity as commander in chief, has the exclusive authority to make tactical military decisions. Congress can declare war but cannot direct the conduct of military campaigns,” they wrote. “It can pass generally applicable military regulations but cannot direct the military’s response to contingent developments.”
Last week, Benjamin Wittes, a senior fellow at the Brookings Institution, wrote that the view such restrictions are unconstitutional “would be a bold assertion of executive authority.”
“The president would be suddenly defying laws he has consistently observed. And he would be doing so only at the point he had lost the ability to get them changed,” he wrote.
