If we DON'T criticize the admin for this, there's something very wrong

[Hissyspit]

153. "President Obama Can Shut Guantanamo Whenever He Wants"

http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/05/president_obama_can_shut_guantanamo_whenever_he_wants_to.html

View From Chicago
President Obama Can Shut Guantanamo Whenever He Wants
Congress isn’t actually stopping him.

By Eric Posner
Updated Thursday, May 2, 2013, at 5:54 PM

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.

There is another section of the NDAA, however, which has been overlooked. In section 1021(a), Congress “affirms” the authority of the U.S. armed forces under the AUMF to detain members of al-Qaida and affiliated groups “pending disposition under the law of war.” Section 1021(c)(1) further provides that “disposition under the law of war” includes “Detention under the law of war without trial until the end of the hostilities authorized by” the AUMF. Thus, when hostilities end, the detainees may be released.

The president has the power to end the hostilities with al-Qaida—simply by declaring their end. This is not a controversial sort of power. Numerous presidents have ended hostilities without any legislative action from Congress—this happened with the Vietnam War, the Korean War, World War II, and World War I. The Supreme Court has confirmed that the president has this authority.

Nor is there any reason why President Obama couldn’t declare the war with al-Qaida at an end. The group’s original core is essentially gone. A Department of Defense official recently hinted that the end of the conflict with al-Qaida is approaching, while the troop drawdown in Afghanistan will be completed next year. Associates and fellow travelers continue to exist, but the president is free to end hostilities even so; this, too, has happened many times before, like in Korea and Vietnam.

It’s true that section 1027, the provision of the NDAA that flatly prohibits the use of funds to transfer Guantanamo detainees to U.S. soil, appears to make it impossible to transfer them to prisons inside the U.S. But if that’s the case, and detainees can’t be transferred to foreign countries under section 1028 either, then section 1027 essentially orders the president to detain non-combatants indefinitely, and such an order is of dubious constitutionality at best. When the Supreme Court approved indefinite detention of members of al-Qaida and the Taliban in Hamdi v. Rumsfeld in 2004, the premise was the president’s military authority under the AUMF and the “active combat operations against Taliban fighters” in Afghanistan. When active combat operations cease, this pillar of the Supreme Court’s opinion falls. And while courts have been reluctant to grant rights to detainees that constrain the president’s power, they are likely to take the opposite view if he advances those rights while declaring that hostilities have ended.

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Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Reach him on Twitter at @EricAPosner.