WILL OBAMA DEFY CONGRESS ON GITMO PRISONERS?

Byron York
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Posted: Dec 29, 2014 6:39 PM
WILL OBAMA DEFY CONGRESS ON GITMO PRISONERS?

President Obama has long advocated closing the U.S. terrorist prison in Guantanamo Bay, Cuba. He likely would have done it long ago, had Congress not stopped him.

Now, however, Obama is not in the mood to abide by anything Congress says. And he is again talking about closing Guantanamo.

The result could be an ugly and protracted fight between the president and lawmakers of both parties. But it's also possible Obama will avoid a conflict and simply use his executive authority to release a prisoner here, a prisoner there, until Guantanamo is very nearly empty -- all done without any meaningful debate.

Meanwhile, as he has done with immigration, the environment and Cuba, Obama will essentially dare Congress to do anything about it. It's all part of the new executive-action presidency.

Back in 2010, when the House and Senate were still controlled by Democrats, huge bipartisan majorities opposed Obama's plan to close Guantanamo and transfer its inmates to the United States. A defense spending bill passed unanimously by the Senate in December 2010 barred the president from spending any funds to transfer inmates to the United States or to close the prison.

That prohibition remains. The latest spending bill, the so-called "CRomnibus," forbids spending for any transfers to the United States or any effort to house Guantanamo prisoners in this country.

But Congress has not barred Obama from transferring Guantanamo inmates to other parts of the world. So far, Obama has released 96 prisoners and is preparing to free more of the remaining 132 detainees.

Just recently, the president released four Afghans who had been held almost since Guantanamo opened in 2002. While some estimates suggest one-third of released inmates have returned to the battlefield, the Obama administration argues that the recidivism rate is falling.

Whatever the case, Obama will soon face an essentially unsolvable problem. Of the 132 remaining inmates, there is a hard core of perhaps 40 or 50 who, because of the nature of their terrorist activity and their detentions, the United States will never charge with crimes, will never put on trial and will never release.

In a May 21, 2009, speech at the National Archives outlining detainee policy, Obama admitted that those inmates present "the toughest single issue that we will face" in trying to close Guantanamo. "These are people who, in effect, remain at war with the United States," the president said.

Granted, it is not a good thing that there are prisoners whom the United States must keep behind bars for life without ever charging or trying them. But that is just one of the baleful effects of the war on terror. The question is, where should those prisoners be held?

Obama, the constitutional law professor, appears to believe there is some magic way to bring them into the United States, put them in the civilian justice system, and never grant them the basic constitutional rights of charge and trial. Who would be comfortable with that?

It seems obvious that the best place for such prisoners is somewhere outside the United States. If such detentions have to exist -- and they do, for this small group -- it just so happens there is a prison at an American facility in Cuba that is perfect for the job.

That's what bipartisan majorities of Congress have said over and over again. Nevertheless, Obama wants to act on his own. "I'm going to be doing everything I can to close (Guantanamo)

," the president told CNN recently. "It is contrary to our values and it is wildly expensive."

Obama conceded that "there's going to be a certain irreducible number that are going to be really hard cases, because, you know, we know they've done something wrong and they are still dangerous, but it's difficult to mount the evidence in a traditional Article Three court. You know, so we're going to have to wrestle with that."

The president can wrestle all he wants, but he's not going to find a way to imprison inmates inside the United States without charge or trial that is, in Obama's words, "consistent with our values." The best way to deal with those cases is to keep them in Guantanamo until they die.

The New York Times recently reported that the administration hopes that "if it can shrink the inmate population to below 100, Congress will revoke a law that bars the transfer of detainees into the country." That was unlikely when Democrats controlled Congress, and it is more unlikely with Republicans in charge. The only question is whether Obama will try to find a way around Congress and the law.

Whatever the president does, he can't change the fact that Guantanamo is the best answer to a very difficult problem.

(Byron York is chief political correspondent for The Washington Examiner.)