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Back during the 2008 campaign, I wrote a piece (“Guantánamo Bay: Don’t Just Close It, Give It Back”) that optimistically assumed that the detention facility at Guantánamo Bay would be closed, because both Obama and McCain favored doing so.

Closing Guantánamo

Obama did indeed issue an executive order on his first day in office, ordering closure of the facility. But I didn’t reckon with the poisonous partisanship with which Barack Obama has been plagued. Legislative prohibitions were put in place after his election that restricted his authority to bring accused terrorists to trial in the federal courts, to transfer prisoners from Guantánamo to the US mainland, or to release them.

The result is that we are scarcely fifteen months from the end of his second term, and the prison at Guanánamo is still there. It currently has something over 100 prisoners, half of whom have been cleared for release, but no country has agreed to take them.

While the administration continues to pursue closure on a case-by-case basis, I think it is time to consider again the option of just returning the entire base to Cuba.

While the administration continues to pursue closure on a case-by-case basis, I think it is time to consider again the option of just returning the entire base to Cuba. I summarized its history in my 2008 essay:

When the US defeated Spain in 1898, Cuba (along with Puerto Rico, the Philippines, and Guam) was occupied by US forces. Unlike the other three territories which were kept under US sovereignty, Cuba was allowed to become formally independent in 1903, but only if it accepted the so-called “Platt Amendment,” which granted the US the right to intervene to maintain “a government adequate for the protection of life, property, and individual liberty.” Cuba was effectively made a protectorate of the United States. Pursuant to that protectorate, Cuba was required to sell or lease to the US lands necessary for coaling or naval stations. The base at Guantánamo Bay is the fruit of that offer it couldn’t refuse.

In the context of the normalization of relations with Cuba, returning the base makes a great deal of sense, since it has had no military function since the end of the Cold War. But obviously the base can’t be returned unless the detention facility is closed. Here is where President Obama can use his authority as Commander in Chief.

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The constitutional power of Commander in Chief of the armed forces has been steadily expanded since the early days of the republic. In particular, Abraham Lincoln relied on it during the Civil War to support a wide range of steps that he thought were necessary to the defense of the Union. War presidents Wilson and Franklin Roosevelt similarly asserted the right to take extraordinary steps as Commanders in Chief. During the Cold War, several presidents actually committed the country to war without a formal declaration of war by Congress.

So at this point there is ample precedent for the creative use of the Commander in Chief authority. But at a minimum, that power surely includes direct command of the armed forces.

Therefore, President Obama has the constitutional authority, as Commander in Chief, to take the following steps, without congressional authorization:

  • Order the transfer of any remaining prisoners from Guantánamo Bay to ships at sea;
  • Order the closure of the unoccupied detention facility;
  • Order the evacuation of the naval base;
  • Order the return of the territory (always considered Cuban territory) to Cuba.

He probably wouldn’t want to do this until the final days of his term, because the Republicans would of course be incensed. They couldn’t do anything about it, but they could make his life even more unpleasant.

john peeler

As an end-game move, it would be spectacular. But he’s probably not audacious enough to do it.

John Peeler