Published by The Lawfare Institute
in Cooperation With

The Washington Post has the latest here. Key points: 1. Lightning Round for Transfers Anticipating NDAA language leveraging the power of the purse to further constrain the ability of the government to transfer GTMO detainees to third countries, "the Pentagon is racing" to complete the transfer 57 detainees who already have been approved for that outcome, out of the overall GTMO population of 122. Forty-eight of them are Yemenis, and it appears the success of this effort will hinge on the ability to get two unnamed states to take them (surely Saudi Arabia is one). It will be VERY interesting to see how Secretary Carter handles this; Secretary Hagel famously was reluctant to approve transfers in some instances, much to the chagrin of the White House. 2. And as for the Rest... Let's say that the transfer effort succeeds in full. That will leave 65 detainees who are not cleared for transfer. Some are being prosecuted by military commission, of course, and the article suggests six or seven more (including Hambali) may soon move into that category. But what about the bulk of them who would still remain? The White House is committed to closing GTMO, but it does not follow that it is committed to ceasing the use of non-criminal detention. The article indicates that the White House is working on a proposal that would pave the way to bring that final group of detainees into the United States either to face trial or--and this is the key part--for continued detention. At first blush, this solution--what we might call move-it-don't-end-it--would seem to require the legislative blessing of Congress, given the existing prohibition on moving GTMO detainees into the United States. But as Jack anticipated (here and here), it is not clear the White House shares this view:
In the event that Congress does pass legislation that would freeze Guantanamo Bay’s population at 122, White House officials are exploring options for the unilateral closure of the prison.
Insofar as this portends a decision to assert Article II authority to override an Act of Congress enacted pursuant to the spending power, it would be a most extraordinary event. I'm not sure how else such a move might be explained...perhaps time will tell.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

Subscribe to Lawfare