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As President Obama approaches his final year in power, a political impasse over the Guantánamo prison appears increasingly likely to force him to choose between two politically unsavory options: Invoke executive power to relocate the remaining detainees in defiance of a statute, or allow history to say he never fulfilled his promise to shutter the prison.
As background to the possibility that the President might ignore the detainee transfer restrictions, Savage discloses earlier Executive branch legal deliberations over the constitutionality of Senator Graham’s contemplated restrictions on the President prosecuting GTMO detainees in civilian trials in the United States. (The constitutionality of such trial restrictions raises related but not identical issues to the constitutionality of detainee transfer restrictions. Both involve Congress's power to control whether detainees can be brought to the United States.) Savage says that my former colleague and now Judge David Barron, when Acting head of OLC, wrote a memorandum – a summary of which Savage has published, here – which concluded that COngress likely possessed the constitutional power to bar the President from prosecuting detainees in civilian court. Savage also reports that Yale Law professor and then-State Legal Advisor Harold Koh argued that the Graham amendment “intruded on core executive powers.” In this connection, Savage reports, Koh maintained that Obama administration officials should not be timid about asserting exclusive presidential power to disregard congressional restrictions concerning military detainees just because they had criticized the Bush administration on those grounds. “Democrats get to be president, too,” Koh said.