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Closing GITMO: Should President Obama Resort to Executive Action to Close Guantanamo Bay?

First Posted: Feb 26, 2016 04:30 PM EST

President Barack Obama recently announced his plan to make good on his 2008 campaign promise to close the detention facility at Guantanamo Bay, Cuba.

According to him, the military prison has not advanced national security efforts to combat terrorism. Instead, it has put American lives at risks by fueling the recruitment efforts of terrorists, in addition to hurting American alliances and draining taxpayer dollars.

"It is viewed as a stain on our broader record of upholding the highest standards of rule of law," Obama said during a speech on Tuesday. "This is about closing a chapter in our history."

Obama's Plan to Close Guantanamo Bay

Under his proposal, Obama seeks to transfer 35 prisoners who have been approved for release to other countries. Meanwhile, another 46 detainees would be evaluated to see whether they could also be transferred.

Right now, there are 91 detainees left at the prison. But that number could be drastically cut before Obama leaves office if the administration determines most of those remaining are low security risks and they are able to find other countries that will house them.

Following the president's speech, Republican lawmakers immediately slammed the president's nine-page plan to empty out the controversial detention center. They also vowed to block his effort.

Obama's Dilemma

This has left Obama in a difficult situation. He now faces the dilemma of whether to use his executive authority to circumvent the Republican-controlled Congress in order to close the costly Cuban detention center. Legal experts, however, say they don't expect him to resort to executive action.

"President Obama restricted himself when he signed the legislation barring him from moving the prisoners in Guantanamo to the U.S.," said Peter Jan Honigsberg, a professor of law at the University of San Francisco and the director of the Witness to Guantanamo project, to Latin Post in an email.

"Although he could argue that the legislation does not bar him as Commander in Chief to move prisoners from the military prison in Guantanamo to a military prison in the U.S., he is not likely to use that authority."

Likewise, Robert J. Spitzer, distinguished service professor of political science at SUNY Cortland, does not have unilateral authority to close the prison on his own. "As long as Congress has acted affirmatively to prevent him from doing that, as it has in this case," he told NBC News.

What Experts Expect

According to Honigsberg there are two reasons why Obama will not take executive action to close the center. One reason is because "the Pentagon has said that it would not support such a move without Congressional authority. And, he needs Pentagon support to move the prisoners," said Honigsberg.

"The other reason is that he would create a Constitutional confrontation with Congress, requiring the Supreme Court to weigh in. I do not think he wants that kind of major confrontation with the other branches of government just before he leaves office."

Instead of issuing an executive mandate, Spitzer expects the Obama administration to continue transferring those deemed to pose no danger to the U.S. to their home countries. The administration could then transfer the remaining suspected terrorists to the U.S. to undergo due process in either a federal court or military commission.

Moving Forward

If the president does decide to take executive action to close Guantanamo, then there is good chance that Republicans would take the matter up before a federal court. Instead of using his authority, Honigsberg suggests that Obama declare an end to hostility with Afghanistan and then release the prisoners who have not been charged.

"The Geneva Convention requires that prisoners be released at the end of hostilities," wrote Honigsberg. "Obama should declare that, after more than 14 years, hostilities with Afghanistan are over. He can then release the men in Guantanamo who have not been charged back to their home countries or to third countries. And, he can prosecute the men who have been charged with war crimes."

Watch Obama's speech on his plan to close Guantanamo Bay below.

*This article was updated to include commentary from Peter Honigsberg.*

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