Bush Opened the Guantanamo Prison Without Congress, So Why Can’t Obama Close It?

Democracy Now

guantanamo prisonHAVANA TIMES – As President Obama takes executive action on gun control without going through Congress, could closing Guantánamo be next? In January 2009, Obama ordered the closure of the Guantánamo Bay military prison in one of his first executive actions. Seven years later, 107 prisoners are still there.

We speak with Caroline Fredrickson, president of the American Constitution Society for Law and Policy. “I think something that’s really important for people to remember is that President George W. Bush opened Guantánamo on his own say-so, without Congress, without any authorization, any legislation to do so,” Fredrickson says. “Obviously, Congress can use the power of the purse … But in terms of the president’s basic authority, he certainly has that.”


AMY GOODMAN: And, Caroline Fredrickson, I’d like you to stay on for one minute to address another issue—not guns, but the issue of the executive authority of the president, what power President Obama can use, that we’re seeing he’s using on the issue of gun control. Could he use this to close the Guantánamo prison camp without congressional approval? In January 2009, one of his first executive orders was calling for the closure of the Guantánamo Bay military prison. Seven years later, 107 prisoners are still there.

CAROLINE FREDRICKSON: Well, so, you know, I think something that’s really important for people to remember is that President George W. Bush opened Guantánamo on his own say-so, without Congress, without any authorization, any legislation to do so. So I would call people’s attention—there was a very important Washington Post opinion piece about a month or so ago by Cliff Sloan, who is the special envoy to close Guantánamo appointed by John Kerry, secretary of state, and Greg Craig, who’s the former White House counsel. And they argue, quite convincingly, that the president is fully within his executive authority to close Guantánamo without going through Congress, because of that very same power that George W. Bush used to open Guantánamo, which is the commander-in-chief power, which is in his purview to take significant actions to affect our national security. And so, I think that’s a very compelling argument. Now, obviously, Congress can use the power of the purse to try and limit that. But in terms of the president’s basic authority, he certainly has that.

AMY GOODMAN: Caroline Fredrickson, I want to thank you for being with us—


AMY GOODMAN: —president of the American Constitutional Society for Law and Policy.

This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we go to Chicago to hear the story of a man who has lived in this country for a quarter of a century. He comes from Turkey, was imprisoned and tortured there. Now the U.S. is threatening to send him back. We’ll speak with him, his daughter and his lawyer. Stay with us.

12 thoughts on “Bush Opened the Guantanamo Prison Without Congress, So Why Can’t Obama Close It?

  • by United States government admission most of those who were in Guantanamo where innocent and have been released from concentration camp Guantanamo , there are some who are innocent and still detained with nowhere to go ,
    how should someone feel when a 1000 pound bomb wipes out is mud hut killing his wife children mother father grandfather grandmother goats dogs cats and whatever was living in his neighborhood ?
    how can someone who’s defending his home and country be called a terrorist?
    what would the average American do if the US gets invaded ?
    I’m not going to say you I don’t think you count ,
    for the handful who are guilty they happen to be the creation of the CIA anyway , the government of the United States is as guilty as they are , if United States government was a private entity they will be in front of the grand jury charged with conspiracy ,

  • The Geneva Conventions refer to a war situation un-uniformed armed personnel (spies) conduct intelligence gathering or sabotage behind enemy lines. In that situation they can be executed on the spot. If they are captured they shouldn’t be subject to torture or humiliation and after the conflict is over they are released. I think it is stretching it a bit to say this applies to charity workers and people kidnapped from third countries.

    You ask “why should these people receive a civil trial?” and I would turn it round and say why not. If they are so obviously guilty in your mind. Take the example of Northern Ireland, though far from perfect and after a brief period of internment without trial, the British introduced the Prevention of Terrorism Act which made conviction easier. But at least everyone was granted a trial and a right to defend themselves and if convicted were given a set number of years imprisonment.

  • It’s a legal problem. If the prisoners are transferred to US territory, they will be entitled to more legal rights. So long as they remain on foreign territory, the US can treat them as war terrorists and hold them indefinitely.

    There was a logic to it at the time, but it may not have been the wisest move, as it has opened up other problems.

    Of course, Obama has avoided adding more prisoners to the camp by vaporizing terrorists with Hellfire missiles. Is that legally, morally or diplomatically preferable?

  • I do support human rights. But why should these people receive a civil trial? They don’t.

    They fit the definition of war terrorist as defined by the Geneva Conventions. They were not uniformed regular soldier, nor were they recognized militiamen operating under the established rules of war. Under the Geneva Conventions, it is permissible to execute them. Many such terrorists were executed during WWI & WWII.

  • I have no problem with them being locked up if they are found guilty of committing crimes after receiving a fair trial. If they are in fact violent fanatics that shouldn’t be too difficult. Without that you are just speculating. I thought you were an ardent supporter of human rights, but as usual that only seems to apply to Cuba.

  • The US has been paying some counties to accept these prisoners. Many of them have slipped off and returned to terrorism. Some of them are certain to face torture or execution back home and therefore the US won’t send them home. Occasionally, a third country has foolishly accepted the prisoners, as Uruguay recently did, much to their eventual dismay.

    You imagine all these poor fellows are boy scouts. In fact, they are violent fanatics determined to kill infidels.

    Simple problem? What’s the problem? Keep these bad guys locked up or execute them. Problem solved. The only problem is the one invented by bleeding heart liberals who either don’t understand who these people are, or the deliberately lie about it.

    You claim to have offered several solutions to this problem. OK, …so what should the US do with Khalid Sheik Mohamad? What’s your simple solution to him? I doubt you even know who he is (without googling his name).

  • Why not open the prison on US land, since it is a US prison? Why is it acceptable to detain those high risk prisoners close to Cuban people but not American? Or, maybe… 120 sq.km for $ 4,085 looks like a good deal for the US government to have their “foot set” on Cuban land and to justify the presence of US military base?

  • If someone says they can’t do something it usually means they don’t want to or can’t be bothered to do anything. The Yemenis could be sent back to their home country but the US doesn’t want to. I can think of many solutions and have made a few suggestions in a previous post. Its ridiculous to suggest that a country as powerful as the US can’t sort this simple problem out.

  • I enjoy your comments. It is if they were written by a kid in Middle school. The TERRORISTS who remain in Gitmo, what do we do with them? Their own countries won’t take them back. Interpol is an international investigative organization. Maybe you mean the World Court? What US policy has children dying. Other than crossing streets while reading their Facebook profile. Be specific.

  • Guantanamo victims….you mean the terrorist right!?

  • I have asked this question before and I’m going to ask it again ,
    can any of the victims in Guantanamo seek justice in the Cuban legal system ?
    and if the game judgment against the Americans can they take it to the Interpol and request the detention of there American tortures ?
    kidnapping , driving , sexual assault , false imprisonment , torture , denial of human rights , denial of due process ,
    at this time and point they could no longer to be valid or useful for any kind of intelligence gathering ,
    at the time off the Americans invaded of Afghanistan they captured a white American (John Walker Lindh ) for aiding the Taliban ,he was sentenced to 20 years federal imprisonment , at the same time they arrested US citizen from Saudi descent , they made him give up his US citizens after years of false imprisonment , he was denied any and all due process under the law , United States is nothing more than a hypocrisy, President Obama talked about the children getting caught up and gun violence , what about all the children dying from American policy all around the planet ? what about them Mr President, come on people wake up

  • As usual, the Democracy Now article totally misses the point.

    The challenge is not how to close the prison. That Obama can close the prison by executive order has never been controversial.

    The real issue is what to do with the 107 prisoners who are there. No US governor wants them in their state, and while he has tried to send as many prisoners back to their home countries, there are some prisoners who are either not accepted by their home governments or do not want to be sent back.

    What should Obama do with Khalid Sheik Mohamad, for example? Set him free? Shoot him? Maybe he can put him on a bus to Havana?

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