Sen. Cotton: Closing Gitmo by Executive Order Would Be ‘Most Brazen Assertion of Executive Power in Over a Century’

By Lauretta Brown | December 9, 2015 | 2:28pm EST
Sen. Tom Cotton (R-Ark.) (AP Photo)

( – Sen. Tom Cotton (R-Ark.) warned Tuesday of the dangers of the president’s attempts to make good on his promise to close the Guantanamo Bay detention facility in Cuba.

In addition to security concerns, Cotton raised objections to any executive order to close the detention facility, claiming that “it would be the most brazen assertion of executive power in over a century and spark a grave constitutional crisis.”

Last month the White House refused to rule out the use of executive authority as an option in President Obama’s goal of closing Guantanamo.  

"I'm not aware of any ongoing effort to devise a strategy using only the president's executive authority to accomplish this goal," White House Press Secretary Josh Earnest told reporters on November 9th, "But I certainly wouldn't, as I mentioned last week, take that option off the table." 

"There are a wide range of thorny, legal questions that are raised by this ongoing effort to close the prison at Guantanamo Bay.” Earnest acknowledged, “I wouldn't sort of speculate on those right now. These are obviously, in some cases because of the unique nature of this facility, in some cases we're in uncharted legal waters here, but the president made clear from his first week in office that closing the prison at Guantanamo Bay is a national security priority."

“President Obama has shown a disturbing penchant to ignore laws, even ones he personally signed, to reach for unilateral, executive actions that upend our constitutional order and ignore the will of the American people,” Cotton said in a speech at the Heritage Foundation.

Cotton gave the example of the president’s exchange of five Taliban commanders for Sgt. Bowe Bergdahl in 2014, which he pointed out “even the GAO concedes violated the 30 day congressional notification requirement.”

“We should be clear. If the president issues such an order, it would be the most brazen assertion of executive power in over a century and spark a grave constitutional crisis,” Cotton said of any order to close Guantanamo, adding that “even those members who support the closure of Guantanamo would likely rise in opposition to what could only be seen as an extraordinary extralegal usurpation of Congress’s power.”

“The Constitution empowers Congress, not the president with the power to ‘make rules concerning captures on land and water,’an explicit reservation of authority to the legislative branch,” Cotton emphasized.

Cotton said that if the president considers using an executive order to close Guantanamo Bay, he hopes “the president considers what his younger self would say to a classroom full of first-year law students the day after such an executive order is issued.”

“It would be a demoralizing and disillusioning lecture, one that would be unable to ground the action in extant law, and that would reveal the cavalier willingness of a president - in whom so many placed so much hope - to circumvent the constitutional order to achieve political ends,” Cotton concluded.

Obama signed the National Defense Authorization Act (NDAA) on Nov. 25 despite the inclusion of provisions placing restrictions on the transfer of Guantanamo Bay detainees to the U.S.

However, President Obama released a statement indicating that he believes the restrictions violate “separation of powers principles,” and that the administration “will implement them in a manner that avoids the constitutional conflict.”

"As I have said repeatedly, the executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy." Obama wrote.

“Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles,” the president argued. “Additionally, section 1033 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus. In the event that the restrictions on the transfer of detainees in sections 1031, 1033, and 1034 operate in a manner that violates these constitutional principles, my Administration will implement them in a manner that avoids the constitutional conflict.”

In a November op-ed, former Obama White House counsel Gregory Craig argued that the president's constitutional power as “commander in chief” of the military authorizes him to make tactical military decisions including, in Craig’s opinion, where detainees can be held.

"(Congress) can authorize detentions and military tribunals and broadly regulate the treatment of prisoners of war, but it cannot direct specific facilities in which specific detainees must be held and tried," Craig argued. “The determination on where to hold detainees is a tactical judgment at the very core of the president’s role as commander in chief.”

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