Eric Posner: "Obama Can Shut Guantanamo Whenever He Wants"

President Obama Can Shut Guantanamo Whenever He Wants
Eric Posner
Slate
May 2, 2013

In his press conference Tuesday, President Obama repeated that he wanted to shut Guantanamo Bay but blamed Congress for stopping him. “They would not let us close it,” he said. But that’s wrong. President Obama can lawfully release the detainees if he wants to. Congress has made it difficult, but not impossible. Whatever he’s saying, the president does not want to close the detention center—at least not yet.

The relevant law is the National Defense Authorization Act of 2012 (NDAA). This statute confirms the president’s power to wage war against al-Qaida and its associates, which was initially given to him in the Authorization for Use of Military Force (AUMF) passed shortly after 9/11. The NDAA also authorizes the president to detain enemy combatants, and bans him from transferring Guantanamo detainees to American soil.

The NDAA does not, however, ban the president from releasing detainees. Section 1028 authorizes him to release them to foreign countries that will accept them—the problem is that most countries won’t, and others, like Yemen, where about 90 of the 166 detainees are from, can’t guarantee that they will maintain control over detainees, as required by the law.

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Eric Posner