WH: If Gitmo Closure Ends Up in Court, Blame Congress

By Susan Jones | November 13, 2015 | 8:00 AM EST

America's enemies at the military prison in Guantanamo Bay, Cuba. (AP File Photo)

(CNSNews.com) - White House spokesman Josh Earnest couldn't say when President Obama will release his "top priority" plan to close the military prison at Guantanamo Bay, Cuba, but on Thursday, he did assure reporters it will be "relatively soon," maybe after Obama leaves Washington on Saturday for a trip to Turkey, Malaysia and the Philippines.

The bigger question is whether President Obama will use his executive authority to order the transfer the remaining Gitmo detainees to prisons in the United States.

That would invite a legal challenge from Congress, which has passed a law specifically prohibiting those transfers.

And if the attempted prisoner transfer does end up in court, it will be Congress's fault, Earnest said: "But, you know, specifically on this issue, I think if this is an issue that ends up in court, it will be as a result of the abject failure of the United States Congress to put the national security interests of the United States first."

A reporter asked Earnest: "What do you think of those kinds of thoughts that this could end up in court if executive action is taken? And I'm guessing that that isn't going to be any kind of, you know, obstacle to the president taking that kind of action."

"Well, there are a number of times where Republicans have threatened legal action, I think most prominently when it comes to the Affordable Care Act, where their legal efforts have not at all been successful," Earnest responded.

"And, you know, we've had two Supreme Court rulings now that have overturned significant Republican threats to the Affordable Care Act law. So I guess I would say from one standpoint that the track record of House Republicans in this regard is not particularly good.

"There are some other places where we are continuing to have an argument through the courts, particularly when it comes to immigration reform.

"But, you know, specifically on this issue, I think if this is an issue that ends up in court, it will be as a result of the abject failure of the United States Congress to put the national security interests of the United States first."

Earnest inisted that "there is a common-sense way for us to proceed in closing the prison at Guantanamo Bay."

"So, you know, what we would like to see is Congress engage constructively in a strategy that is supported by people who have dedicated their lives to protecting the country. We're just asking members of Congress to fulfill their responsibility to put the interests of the country ahead of their narrower political interests."

Earnest on Thursday repeated that President Obama is not going to "take anything off the table" when it comes to what he can do to accomplish a goal he set during his first campaign for president.

But Earnest also told reporters, "Our strong preference would be to engage Congress in a constructive discussion about how they can cooperate in the achievement of a national security priority that has strong bipartisan support among people who have spent the vast majority of their careers protecting the country. And, you know, that's what we're seeking to achieve, and it remains to be seen exactly, you know, what Congress' reaction will be."

A reporter asked Earnest, "Do you want Congress to act on it in some fashion? Are you expecting, like, hearings?"

"We'll have to see," Earnest responded. "I think our hope would be that Congress would review the report, agree that it is a reasonable approach to accomplishing this goal of closing the prison at Guantanamo Bay that advances our national security interests, and actually advances the interest of taxpayers, too.

"And what we would like Congress to do is to take steps to remove the obstacles that they put in place that prevent the implementation of this plan."

That would require Congress to repeal a provision the just-passed defense spending bill, which bars the president from transferring detainees from Gitmo to the United States.  

"[T]hat may be -- that may be what's required," Earnest said. "Ultimately, Congress will have to consider the plan and determine what steps they need to take to allow the plan to be implemented.

"But this has been our objection for quite some time, that Congress has frequently included language in the National Defense Authorization that prevents the implementation of the -- of this plan.

"And so, we're hoping that by being more specific about what the plan includes, that Congress will -- members of Congress will come to their senses and remove the obstacles that prevent implementation of a plan that's in the best interest of our national security and in the best interest of ensuring that we're being good stewards of taxpayer dollars."

The reporter noted that since Obama plans to sign the defense spending bill, "only executive action will allow him to make good" on his plan to close the prison.

"Well, I -- I -- what I have indicated is that we're not going to take anything off the table in terms of options that may be available to the President," Earnest said. "But our first choice would be to garner cooperation from United States' Congress. OK?"

Earnest noted that Obama has expended "significant time and energy to finding a way to overcome Congressional obstruction to achieving this goal."

He called it "good news" that "there are effective ways to safely detain" the worst of the worst from Gitmo.

"And this is the plan that we're seeking to implement, and at every turn, it seems that Congress has attempted to put obstacles in our path of achieving this goal. And despite that obstruction, we have succeeded in transferring more than 100 individuals from the prison at Guantanamo Bay to other countries around the world. We've done that since the president first took office. And there's more work that needs to be done here."

The plan to close the prison in Cuba and bring the remaining enemy combatants to the United States is being prepared by the Pentagon, and it is expected to include the specific U.S. prisons where the terrorists would be housed -- reportedly in Colorado, South Carolina or Kansas.