Congress didn’t make it impossible. The president could have jumped through the hoops Congress now requires and continued moving prisoners out of Guantánamo. But he didn’t. Instead, he froze all transfers, including 56 men from Yemen who had been “cleared” for transfer by a national security commission that Obama himself established. The government, the commission essentially said, has no national security interest in holding these men. Yet Obama continued to let them rot in that Cuban hell. And you wonder why they are on a hunger strike?
Or, for that matter, why the military command at Guantánamo has no compunction about instituting punishing new “burdens” on the detainees even as their commander in chief decries what goes on there? (For the record, a military spokesman denies that the heightened searches include genital and anal touching.) Indeed, the current commander of the prison, Rear Adm. John W. Smith Jr., was just named to a cushy new post at the National Defense University. Thumbing one’s nose at Obama, as virtually everyone in Washington has learned by now, has no consequences.
It is my belief, shared by many lawyers who have followed the legal battles over Guantánamo, that the president could have shut down the prison if he had really been determined to do so. One reason innocent detainees can’t get out is that the courts have essentially ruled that a president has an absolute right to imprison anyone he wants during a time of war — with no second-guessing from either of the other two branches of government. By the same legal logic, a president can also free any prisoner in a time of war. Had the president taken that stance, there would undoubtedly have been a court fight. But so what? Aren’t some things worth fighting for?