Immediately after his inauguration, Obama did indeed order the detention facility closed (though he didn’t give the base back to Cuba). Then Congress voted to prohibit the transfer of any detainees to any part of U.S. territory. Since then, Obama has been slowly drawing down the numbers of detainees at the base, releasing a few, sending some to their home countries and some to third countries. But a significant number of the most difficult cases remain at the base: those who cannot by tried because they were tortured, or because it might reveal intelligence secrets, but who also cannot be released because they allegedly pose a significant risk even now.
As part of its continuing—and likely futile—effort to get Congress to repeal the prohibition on transfer of detainees to U.S. territory, the administration has just released a new report that attempts to allay concerns that the courts might release terrorists. But Obama will get even less cooperation from this dysfunctional, deadlocked Congress than he did back in 2009, with Democrats controlling both houses.
He needs, instead, to look to his executive authority, as he has done recently on environmental issues. His authority as Commander-in-Chief of the Armed Forces is far more firmly established than that in any domestic policy area.
He could simply order the closing of the detention facility, the transfer of detainees and the entire Guantánamo operation to ships at sea, and the evacuation of the base.
Why would this make sense? First, the detention facility is a highly embarrassing violation of the laws of war, that even the Bush administration wanted to close. Obama staked his credibility on closing it, and has faced bitter partisan opposition to his plans. He could accomplish his goal and present his opponents with a fait accompli. And, he could reinforce his claims for executive authority as he confronts a paralyzed Congress.
It would be an audacious move (quite uncharacteristic of this president), a move that would surely provoke intense criticism, lawsuits, perhaps even talk of impeachment. But by taking his justification from his powers as Commander-in-Chief, he would be on strong ground.
The evacuation of the base is a key component of the move, because it would render the other steps irreversible: no subsequent president could reestablish the detention facility if the base were no longer under our control. Congress could not require the president to reoccupy the base. And it is not a question of the president giving up U.S. territory, since the status of the base as Cuban territory leased by the U.S. was critical to its use as a facility supposedly beyond the reach of U.S. courts. So the president could simply declare that continued occupation of the base is no longer necessary for our national security. And indeed, the base has had no serious national security significance since the end of the Cold War.
By transferring detainees and the whole detention operation to ships at sea, the president would not violate the prohibition on their transfer to U.S. territory, since they would be on the high seas. And if Congress decided to cut funding to the ships in question, they would simply have to return to their home ports in the United States.
Go for it, Mr. President! It would be a slam dunk!