Enforcing Legal Limits On Gitmo Transfers

REUTERS/Brennan Linsley/Pool/Files

Elizabeth Price Foley Law Professor, Florida International University
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There are eighty men left in the Guantanamo Bay detention facility. They are the worst of the worst in the war on terror and all but two are classified as posing a “high risk” to the U.S. They include numerous members of Usama Bin Laden’s guards at his Tora Bora mountain complex, a member of the cell that attacked the U.S.S. Cole, and such terrorist luminaries as Obaidullah, an al-Qaida explosives expert who played a direct role in IED attacks against U.S. forces in Afghanistan, Omar Hamzayavich Abdulayev, a militant extensively trained in chemical and biological weapons, and Ridah Bin Saleh al Yazid, whom the Department of Defense characterizes as a “veteran jihadist” with “extensive training in the use of weapons and explosives” who has “numerous connections to senior al-Qaida officials, including Usama Bin Laden (UBL).”

In his quixotic quest to shut down Gitmo by emptying it, President Obama is planning to transfer approximately one-third of these remaining eighty detainees — which ones, we do not yet know — to other nations around the world. Presumably, the Obama Administration is eyeing twenty-eight detainees who have been cleared for transfer by the Periodic Review Board, a body created by President Obama and consisting of handpicked, senior executive officials.

Unfortunately for President Obama, Congress has recently enacted tight restrictions on the transfer of Gitmo detainees to other countries. Under section 1034 of the 2016 National Defense Authorization Act (NDAA), Congress has prohibited the transfer of any Gitmo detainees unless the Secretary of Defense provides a specific, written certification to Congress at least thirty days prior to the planned transfer.  

Among other things, section 1034’s certification requirement demands that the Secretary certify that the transfer of any individual “is in the national security interests of the United States,” including an explanation as to why. It also requires certification of an assessment of the capacity and willingness of the country receiving the detainee to fulfill its obligation to “substantially mitigate any risk the individual could attempt to reengage in terrorist activity or otherwise threaten the United States or its allies or interests.”

President Obama signed the 2016 NDAA in late November 2015 but simultaneously issued a signing statement asserting that “the executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine … when and where to transfer them consistent with our national security and our humane treatment policy.” He stated that section 1034 “would violate constitutional separation of powers principles” and he would implement it “in a manner that avoids the constitutional conflict.” What this means exactly, no one really knows.

One thing is clear, however: President Obama does not like the limits that section 1034 imposes on his ability to transfer Gitmo detainees at will. He appears to believe that the president alone has power to make such a momentous decision. But Article I, section eight of the Constitution gives Congress the power to appropriate money for the military and attach strings to the receipt of such money — which it has done via section 1034 of the NDAA — and also to punish offenses against the law of nations and to “make rules concerning captures on land and water.” The latter authority — the Captures Clause — has generally been construed to refer only to “prizes” of war, meaning property but not people. But the Define and Punish Clause is certainly apposite to Gitmo, as the Gitmo detainees were captured in a field of war, and are indisputably being held in law-of-war detention.

While the president has broad authority as Commander-in-Chief and in the realm of foreign affairs, he does not possess sole constitutional authority to determine the manner and means by which the U.S. may detain those captured in a field of war. The constitutional powers of the President and Congress undoubtedly overlap in this realm, and the Supreme Court has made it clear, since Justice Jackson’s famous concurrence in Youngstown Sheet and Tube (1942), that “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”

Pragmatically, this means that if President Obama fails to comply with the NDAA’s certification or 30-day notification requirements — as was the case with the release of the Taliban Five in exchange for the release of Sergeant Bowe Bergdahl — he is skating on very thin constitutional ice.

Given President Obama’s poor track record of respect for Congress’s wishes regarding Gitmo — including ignoring the congressional notification requirement with the Bergdahl swap and his recent signing statement claiming that section 1034 is unconstitutional — Congress should be on notice that the upcoming Gitmo transfers may well defy section 1034.

To prevent such a blatant power grab, Congress should be prepared to file, if necessary, a lawsuit in the federal district court in D.C., seeking to immediately enjoin any noncompliant Gitmo transfers. Just a couple of weeks ago, a federal trial judge in D.C. reaffirmed that the House of Representatives has legal standing to challenge presidential actions that infringe upon congressional power.  While this ruling is expected to be appealed, it nonetheless provides important legal precedent upon which Congress should not hesitate to capitalize when necessary to defend its legislative prerogative.  

Without the ability to seek an immediate injunction to enforce section 1034 of the NDAA, the law is little more than unenforceable window dressing, and the proverbial terrorist cats can be let out of the Gitmo bag without any practical means to put them back.