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Why an Obama Executive Action Closing Gitmo Might Be Tough to Stop

"Obama gets away with a lot because..."

AFP/Getty Images

Constitutional or not, if President Barack Obama takes executive action to close the Guantanamo Bay prison in Cuba, it could be very tough to stop him, legal experts said.

The White House has said that Obama will likely sign the National Defense Authorization Act, which includes a prohibition on transferring detainees from Guantanamo Bay. However, the White House is also considering executive action if Congress will not support an administration proposal to close the detention center. The NDAA was the sixth bill that a bipartisan majority in Congress passed to keep Gitmo open. But that might not be enough, said legal expert J. Christian Adams, a former Justice Department attorney.

In this photo reviewed by the US Military, a guard works at Guantanamo's Camp 6 detention center at the US Naval Base in Guantanamo Bay, Cuba, January 21, 2009. (Photo: AFP/Getty Images) A guard works at Guantanamo's Camp 6 detention center at the U.S. Naval Base in Guantanamo Bay, Cuba. (AFP/Getty Images)

“Efforts in Congress to stop Obama from closing down Gitmo have got to include a private right of action,” Adams told TheBlaze. “What that means is, somebody has the right to sue. If they close down Gitmo, who can stop it? That’s the big issue. Obama gets away with a lot because nobody has standing to block Obama from doing anything.”

Legal standing for Congress, states or even private citizens would all be decided on a case-by-case basis because the bar for suing the government is usually high, said Frank J. Scaturro, former counsel for the Constitution for the Senate Judiciary Committee and a visiting professor at Hofstra Law School.

"There is a real question of standing because it might be up to a majority of Congress to authorize the filing of a lawsuit and we don’t even know if they would succeed,” Scaturro, now a partner at the New York law firm of Fisher Broyles, told The Blaze. “I think the court probably would grant them standing.”

But standing would be narrower for citizens, Scaturro added.

“If they moved the base to the middle of Kansas, could you have a resident that lived right beside the new location who could then sue? They might have standing as well,” he said. “It’s the only place I’d contemplate an average citizen having standing is if they were very directly in geographic proximity to it. That is a real challenge in the next step of taking it to the courts and we really don’t know how the courts would rule on it.”

Advocates for having the president act unilaterally say that Obama has authority under Article II, Section 2 of the Constitution, which puts the president in charge of conducting a war. However, given the passage of the NDAA, that would be a challenging legal argument, Scaturro said.

“If Congress hadn’t spoken, it would have been one thing. He would have had a lot of discretion in his ability to do this,” he said. “With Congress actually addressing it, it would be imprudent just as a matter of policy. Of course, he’s going to claim under his Article II power that this is what he can do prosecuting a war, but I think it’s a dubious claim.”

Although White House spokesman Josh Earnest has said several times that executive action to close the prison is on the table, other White House officials are more low-key.

White House Counsel Neil Eggleston declined to say Thursday if the administration had developed a process for closing the prison through executive action.

“Basically, we are looking forward to working with Congress to close it. So that’s where we’re focusing on,” Eggleston told reporters at a Federalist Society event in Washington. “There is some interest on the Hill, I think, for doing it. That’s really the place that we are focused on, working with Congress and getting it closed.”

“If they are going to close down Gitmo, these people are going to have to go Illinois or go to South Carolina,” Adams said, referring to the Naval brig in South Carolina and a federal prison in Illinois. “That’s where the Gitmo detainees are going to go. If that happens, it will be a done deal, and knowing Obama, he’ll just do it because he doesn’t really care about the law or the process. This is so core to his presidency that he’ll do something radical.”

On his first full day in office, Obama signed an executive order to close the Guantanamo Bay detention center within a year. But even the Democrat-controlled Congress blocked this action during his first two years.

Because there is bipartisan consensus in Congress against closing the prison, a veto-proof super majority to grant standing and keep the prison open could be possible, Adams predicted.

He said top Democratic Sens. Dick Durbin of Illinois and Charles Schumer of New York would likely oppose closing the prison.

“If the bill is don’t close down Gitmo, don’t send them to Illinois, don’t send them to New York, don’t send them to South Carolina, I think you can get two-thirds of the Congress behind it,” Adams said.

One last thing…
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