How Can the President Close Guantanamo Bay? by Clarence B. Leatherbury

Senate Bill 2410 - Carl Levein - To Authorize Military Activities for 2015On June 24, 2007, while on the Presidential campaign trail, Illinois Senator Barack Obama stated to a crowd in Texas, “We’re going to close Guantanamo. And we’re going to restore habeas corpus.” Now President Barack Obama is trying to honor that promise.

One way President Barack Obama could close Guantanamo Bay is by vetoing the annual defense spending bill. The 113th Congress drafted Senate Bill 2410, known as the “Carl Levin National Defense Authorization Act” for Fiscal Year 2015. The National Defense Authorization Act includes a provision which prohibits the President of the United States from transferring the remaining 149 detainees to the U.S.

The provision reads:

(a) In General- Except as provided in subsection (b), none of the funds authorized to be appropriated by this Act for fiscal year 2015 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who–
(1) is not a United States citizen or a member of the Armed Forces of the United States; and
(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.
(b) Transfer for Detention and Trial- The Secretary of Defense may transfer a detainee described in subsection (a) to the United States for detention pursuant to the Authorization for Use of Military Force (Public Law 107-40), trial, and incarceration if the Secretary–
(1) determines that the transfer is in the national security interest of the United States;
(2) determines that appropriate actions have been taken, or will be taken, to address any risk to public safety that could arise in connection with detention and trial in the United States; and
(3) notifies the appropriate committees of Congress not later than 30 days before the date of the proposed transfer.


If President Barack Obama vetoed the legislation though, Congress could override the veto with a two-thirds vote of both houses, whereupon the legislation would become law.

Signing Statement?

A second option is President Barack Obama could include a signing statement upon the signing of the bill into law. The President’s signing statement could declare that the provision limiting the transfer or release of individuals at Guantanamo is unconstitutional. His administration then could take action to close Guantanamo Bay and remove the remaining detainees to other prison facilities. The website described a signing statement as, “a written comment issued by a President at the time of signing legislation. Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs. The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional.”

Signing statements though have often been criticized by many Constitutional scholars. They argue that the President should sign the bill as presented by Congress, veto the bill, or do nothing. They argue that there is no constitutional provision which empowers the President of the United States to approve or reject which part of the legislation his administration plans to enforce. And they argue that the signing statements which effectively nullify parts of a bill assume the nature of the Line Item Veto, which was declared Unconstitutional in Clinton v. City of New York. \

Pre-Existing Authority?

Others argue that the President already has the authority to close the detention center. On May 23rd, 2013 former Congressman Ron Paul on the Podcast Ron Paul’s America, stated, “I believe the president does have this authority to do it on his own. He’s the commander in chief. He has the authority to move his troops around. . . So I would say if he’s telling us the truth that he wants it closed, just go ahead and do it.”


Currently, there are 149 detainees at Guantanamo Bay. 79 have been approved for transfer to foreign nations, although finding a trustworthy nation to house them is an issue that must be carefully weighed. The U.S. had Abu Bakr Al-Baghdadi in custody, who now heads ISIS, but Al-Baghdadi was later released after being transferred to Iraqi custody. A provision in the National Defense Authorization Act allows them to return to their home countries or to certain other nations willing to receive them. Another 37 detainees been classified as too dangerous to be released, in spite of a lack of evidence to convict them by trial. And 33 are in pretrial hearings or have been designated for prosecution by the military commission.

The White House wants to close Guantanamo Bay, in part, due to the astronomical cost that are associated with running the prison. The prison cost taxpayers 500 million per year to operate. And the White House wants to close the prison because it now it now stands as a symbol for torture, the suspension of habeas corpus, secret renditions, erosion of due process, secrecy, and perpetual war. These negative symbols are a result of indiscretions committed by the US government and closing Guantanamo Bay could be a big step towards ending them.

For more insights, please see this WSJ article: Obama Weighs Options to Close Guantanamo: Any Move to Override Congressional Ban on Bringing Detainees to U.S. Would Spark Fight

Senate Bill & House Bill - Military Authorization

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