A False Choice on Guantánamo Closure

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

The President’s National Defense Authorization Act (NDAA) veto last week signaled the start of the Obama administration’s final push to close Guantánamo. Last week, I argued that the veto shows: first, that this time, the President is serious; second, that his stiffened political will guarantees that the NDAA political drama now beginning will unfold differently; and third, that going forward, the President has significant constitutional arguments that would allow him to challenge the legality, as applied, of the NDAA’s GTMO restrictions.

That post triggered commentary from Jack Goldsmith (here and here), Deborah Pearlstein, and Charlie Savage over the weekend in the New York Times (derived from his forthcoming book). Savage’s article seeks to connect the current blogospheric discussion with an earlier interagency debate among Obama administration lawyers — including me, as State Department Legal Adviser — about the constitutionality of the Graham Amendment, a defense authorization amendment that would have barred the administration from prosecuting Guantánamo detainees in civilian court.

Obviously, I cannot comment publicly on what legal advice I gave as Legal Adviser. But what is most surprising is that each of these four articles assumes that the President has the same false choice about Guantánamo closure. As Savage puts it (emphasis added): President Obama will be forced

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.

But the ambiguous phrase “invoke executive power” could mean “invoke clearly unlawful executive power,” which would of course be plainly wrong; “invoke clearly lawful executive power,” which is surely unobjectionable; or “invoke all legally available executive power, including situations where its legality could be contested.” My view is that the President need not choose between invoking executive power and keeping Guantánamo open. He could now fulfill his closure promise by invoking all his legally available executive powers, and seeing whether Congress has the courage of its convictions to challenge his actions.

Goldsmith claims that (emphasis added):

[T]he only way [for Obama] to close [Guantánamo] is to use an extraordinarily aggressive interpretation of executive power to act against the will of Congress and not obviously in a way that the American people support, just as he is walking out the door.

Pearlstein similarly describes the issue as a false choice between executive lawlessness and closing Guantánamo, asking:

Which does the President think is more important? The strategic importance of closing Guantanamo on his watch? Or the structural, historical importance of holding the line on the expansion of presidential power in the United States?

But why are these the only options? Surely, the President can think both objectives are important and try to accomplish both. Both authors simply miss my point: Finally, the President has vetoed the NDAA and its accompanying funding restrictions, which purported in multiple ways to constrain his constitutional capacity to transfer, prosecute, or engage in diplomacy regarding Guantánamo detainees. The President has now put the ball back into the court of a Congress in visible political disarray. By so doing, after so many years of unexecuted threats, his veto has transformed the political landscape against which the Guantánamo closure discussions will now play out.

Each house of Congress — led by Senate Majority Leader Mitch McConnell and the new House Speaker Paul Ryan — must now vote by 2/3 to override the President’s veto. Based on the original 2016 NDAA vote, the House would need 20 more votes by this Thursday, November 5, when the floor vote is currently scheduled, to override the veto. But even House Republicans don’t think a successful override vote in that body is likely; 10 of them even voted against the NDAA conference report. And even if the House were to pass the override by 2/3, and the issue went to the Senate, a 2/3 override vote there is no certainty. Seventy senators voted for the 2016 NDAA bill, but the President was not fighting as hard then against either the NDAA or the Guantánamo provisions. As we saw with the recent vote on the Iran Nuclear Deal, if the President can keep just 34 Senators on his side, he can sustain even a controversial foreign policy position against a vocal congressional effort at override. If the President could rally just four more senators to his side to close Guantánamo without Congress’ restrictions, his veto could also be sustained there, again surely a lawful exercise of executive power. And if 41 senators support the President’s Guantánamo closure plan, they can block cloture on the Senate override vote via filibuster and prevent the override vote from ever even reaching the Senate floor.

Either result would put the ball back into Congress’ court — with time running out on this year’s legislative calendar — either to (1) enact a revised NDAA without the Guantánamo restrictions, or (2) to send the NDAA back to the President leaving those restrictions in, while stripping out the other provisions to which the President objected in his veto statement. Such provisions include language that underfunds the military budget through use of the Overseas Contingency Operations (OCO) funds to circumvent strict spending limits placed on military programs in the 2011 Budget Control Act. (OCO dollars, which fall outside the normal budgeting process, have traditionally been used to support expensive ongoing counterterrorism activities, primarily in the Middle East and Afghanistan.) But if Congress took the latter course, stripped out the OCO provisions, revoted on the NDAA, and sent it to the President, he could again veto the revised NDAA, making clear that he will no longer sign any bill that has unacceptable Guantánamo restrictions in it.

So the President will likely prevail, just by playing entirely lawful veto politics. In so doing, he would emulate past NDAA vetoes by Ronald Reagan in 1988 and George W. Bush in 2007. The NDAA veto was only President Obama’s fifth in seven years, as compared to 37 for Bill Clinton and 78 for Ronald Reagan (including all their pocket vetoes). So yes, Democrats do get to be President, too. All President Obama now needs to do is stick to his guns, and not cave politically going forward. Perhaps most interesting, no one really knows what will happen if the veto holds and no NDAA is enacted. As two experienced Defense Department-watchers write:

We’ve pinged a number of experienced [Armed Services Committee] staff and other experts and no one really knows the likely consequences of a veto. It looks likely that troops will get paid, weapons bought, and operations paid for, albeit at lower levels than the Pentagon requested. … What are the unknown, unintended consequences of not having an authorization bill? We don’t know.

Curiously, Goldsmith’s first post claimed to look at this emerging “big picture,” without discussing the key point: So long as the President keeps vetoing an NDAA that has the Guantánamo restrictions in it, Congress must finally decide how much it really cares about keeping Guantánamo open, as opposed to authorizing a defense budget. Goldsmith and Pearlstein both assume the President will sign an NDAA that returns to him with Guantánamo restrictions in it. Both focus narrowly on the President’s legal case for challenging the unconstitutionality of funding restrictions that impair the President’s core constitutional functions, which they call “weak.” But is it really?

I fully agree that in challenging the constitutionality, as applied, of any Guantánamo provisions in a revised NDAA, the President’s hand would be strengthened by the Supreme Court’s recent decision in Zivotofsky v. Kerry. There the Court held 6-3 that a provision of the Foreign Relations Authorization Act unconstitutionally infringed on the President’s exclusive power to recognize foreign states. (Disclosure: As Legal Adviser, I signed a prior US government Supreme Court brief in Zivotofsky). Goldsmith cites from a January 2009 OLC opinion, but leaves out the language most relevant here (emphasis added):

We have no doubt that the President’s constitutional authority to deploy military and intelligence capabilities to protect the interests of the United States in time of armed conflict necessarily includes authority to effectuate the capture, detention, interrogation, and, where appropriate, trial of enemy forces, as well as their transfer to other nations. Cf, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (describing important incidents of war).

As the June 2015 Statement of Administration Policy on the Guantánamo provisions contained in the Senate version of the bill makes clear, the proposed transfer restrictions in the NDAA would: (1) categorically prohibit the use of funds for the construction or modification of any facility to house Guantánamo detainees in the United States, and (2) place onerous restrictions on the transfer of any detainees to the United States for trial, imprisonment, or even emergency medical treatment. The NDAA also requires the President to provide Congress a 30-day notice before any transfer, even to foreign countries, and even of detainees who have been cleared for transfer by both the George W. Bush and Obama administrations. Would it really be so aggressive for the President to suggest that under certain circumstances, some of these provisions could be unconstitutionally applied?

For example, of the 112 detainees left on Guantánamo, 10 have been charged or convicted by military commissions, but as Prosecutor-in-Chief, why wouldn’t the President have some discretion to decide that those who have not yet been tried would be best tried here in the United States, not on Guantánamo? Of those left, 52 have been recommended for transfer abroad if security conditions permit. But as Diplomat-in-Chief, why wouldn’t the President have constitutional discretion to negotiate the diplomatic transfer of that group en bloc to say, Saudi rehabilitation, if the Saudis were to agree? Some of the detainees are seriously ill — one well-known hunger striker now weighs only 74 pounds — and may soon need emergency medical care that Guantánamo’s medical facilities cannot provide. Does the President really have no discretion as Commander-in-Chief to decide that he will not leave such detainees on Guantánamo to die? And nothing in the first of the NDAA restrictions described above would prevent continuing detainees from being moved to existing unmodified brigs or high-security prison facilities throughout the United States.

The most consequential Guantánamo restriction in the current NDAA may be the funding provision requiring a month’s notice to Congress before the Secretary of Defense transfers any detainees for any reason whatsoever. But in June 2014, the administration exchanged Taliban prisoner Sgt. Bowe Bergdahl for five Afghan detainees (who were then sent outside the United States) without delaying the transfer to give prior notice. Instead of being cowed by the NDAA-GTMO funding restrictions, the President simply called Congress’ bluff. He argued that the provision did not apply, and that as applied in that circumstance, delaying the transfer would have been an unconstitutional intrusion on the President’s powers because of his responsibility to protect Bergdahl’s life. If the President decides to move a number of the detainees en bloc, the separation-of-powers language in the administration’s Bergdahl swap rationale could end up being repeated, as modified to include relevant facts, with regard to some or all of the continuing detainees.

In sum, the President proceeded with the Bergdahl transfer and waited to see if Congress cared enough to do anything. It did not. Ironically, in a blogpost regarding the Bergdahl transfer, Goldsmith wrote (emphasis added):

Does Congress care?  As far as I can tell Congress as an institution has acquiesced in the administration’s legal arguments supporting both the Taliban five transfer and the unconstitutionality, in some circumstances, of the Homeland transfer restrictions. If the President does transfer some or all of the GTMO detainees to the United States, he will be able to say that he has for years been signaling his authority to do so and that Congress has done little if anything as an institution to object.

Liberals and conservatives alike should acknowledge that an extraordinarily aggressive interpretation of executive power is not the only way to close Guantánamo. All the President needed to do was to veto the NDAA — i.e., invoke his lawful executive power, which he always had a full constitutional right to do, and which he has now finally done. President Obama’s real choice now is not between closing Guantánamo and asserting a wildly overbroad theory of executive power. He simply needs to follow his new, better game plan: i.e., to (1) keep vetoing any NDAA with GTMO restrictions, (2) see if Congress really cares enough about keeping GTMO open to override him, (3) keep working hard to bring the number of detainees down, while (4) making clear that even if Congress could muster the votes to pass the NDAA without his signature, he would not see it as barring his oft-repeated plan to close Guantánamo because he believes that particular restrictions are not simply “onerous” as a matter of policy, but unconstitutional as applied as a matter of law.

The President has to hang tough and see whether an unusually disorganized Congress cares enough to force him onto untested constitutional ground. If the President is determined to close Guantánamo, and is ready to keep lawfully vetoing and to make clear that he would consider renewed Guantánamo provisions in a final NDAA to be of dubious constitutionality — then it would be up to Congress to show that it cares enough to shut down the entire Defense Department just to keep Guantánamo open. At the end of the day, it is not the President who has to choose; he just needs to force Congress to choose.

A final analogy (warning: spoilers follow): In the historically-based Stephen Spielberg movie Bridge of Spies, Tom Hanks, playing Jim Donovan, a lawyer deeply committed to the rule of law, is instructed by the CIA to trade his client, Russian spy Rudolf Abel, for downed American U-2 pilot Francis Gary Powers. Donovan learns that East Germany has also captured and is ready to trade a different American for Abel. So the audience is led to believe that Donovan faces a tragic choice between the fate of the two American prisoners. But Donovan proves that that supposed “choice” is a false one: He ends up insisting that the US turn over Abel in exchange only for both Americans, not just one or the other. The Russians and the East Germans both test Donovan to see if he is bluffing, but when they realize he is not, they cave and hand over both in exchange for Abel. So there was no Hobson’s Choice after all; it was just a matter of America having the courage of its convictions.

The same is equally true here. The President need not choose between illegality and breaking a campaign promise. Can he abide by the law and still close Guantánamo? To coin a phrase: “Yes, he can.” 

About the Author(s)

Harold Hongju Koh

Sterling Professor of International Law, Yale Law School; Legal Adviser, U.S. Department of State (2009-13), Assistant U.S. Secretary of State for Democracy, Human Rights and Labor (1998-2001)