Closing Guantanamo Sans Congress

President Barack Obama enjoys constitutional authority to transfer all Guantanamo Bay "enemy combatant" detainees to the United States for imprisonment notwithstanding the funding restrictions of the National Defense Authorization Act of 2016.

The President-not Congress--selected Guantanamo to house suspected enemy combatants as an incident to executing the 2001 Authorization to Use Military Force (AUMF) against persons, organizations, or nations complicit in the 9/11 terrorist abominations to prevent a reoccurrence.

As Commander-in-Chief under Article II of the Constitution and to faithfully execute the AUMF, the President is empowered to decide on enemy combatant detention arrangements that he believes best advances the aim of defeating international terrorists associated with 9/11.

President Abraham Lincoln issued the Emancipation Proclamation as a war measure. President Franklin Roosevelt decided on the locations of Japanese American concentration camps during World War II without interference by Congress as a war measure. President Obama can similarly argue that closing Guantanamo is necessary to end its material assistance to the recruiting efforts of ISIL, Al Qaeda, and other Muslim terrorist organizations.

Congressional reliance on the power of the purse to handcuff the President on national security matters is not invincible. The United States Supreme Court held in United States v. Lovett (1946) that Congress could not prohibit the payment of executive branch salaries to employees it believed held Communist sympathies.

Section 1031 of the National Defense Authorization Act of 2016 prohibits President Obama's use of funds to transfer Guantanamo detainees to the United States for imprisonment. But it is unconstitutional and may be disregarded.

President Obama needs political protection, however, to close Guantanamo Bay. Zacarias Moussaoui is his answer.

In 2006, Moussaoui was prosecuted by President George W. Bush as the 20th 9/11 hijacker in a federal civilian court in the Eastern District of Virginia. He was found guilty of complicity in 3,000 terrorist murders and sentenced to life imprisonment. President Bush dispatched him to the ADX Florence Correctional Facility in Fremont County, Colorado. There were no terrorist threats on the federal courthouse during the trial of Moussaoui. There have been none during his decade-long imprisonment at the Florence Correctional Facility.

The remaining 91 Guantanamo Bay detainees, in contrast to Moussaoui, have not been convicted of any crime. The idea that they cannot be imprisoned safely at the ADX Florence Correctional Facility or its equivalent is fatuous. Congress was controlled by Republicans in 2006 with a Republican in the White House when Moussaoui was dispatched to ADX Florence. Not a peep was heard then that his imprisonment there would endanger the American people by inviting a terrorist attack or otherwise.

If ADX Florence was good enough for convicted 9/11 terrorist Moussaoui in the eyes of congressional Republicans and President Bush in 2006, it should be good enough for non-convicted 9/11 suspected and unindicted enemy combatants in the eyes of congressional Republicans in 2016 with President Obama in the White House. Even a dolt can see that the sole relevant difference between 2006 and 2016 for congressional Republicans is not the safety of the American people, but the political affiliation of the incumbent President.

President Obama should transfer the 91 Guantanamo detainees in groups of 8 over the course of 11-12 weeks to the United States for imprisonment in supermax facilities. ADX Florence alone holds over 400 supermax prisoners. Each transfer week, Republican Members of Congress and Republican presidential candidates will scream like Chicken Little that the sky is falling down and that international terrorist attacks on the United States are both imminent and inevitable.
But as has been proven by the decade-long imprisonment of the 20th hijacker, nothing will happen by imprisoning the Gitmo detainees in the United States.

One of the concocted fears of the military-industrial-terrorism complex will have been deflated, and an international terrorist recruiting device will have been dismantled.