The Significance of Attorney General Lynch’s Testimony on Closing GTMO

Josh Gerstein has a nice summary of Attorney General Lynch’s testimony yesterday concerning the closure of GTMO (minutes 44-48 or so here). A key passage:

With respect to the existing state of the law, the Department of Justice is committed to fully following that and the closure of Guantanamo Bay is being carried out in compliance with [Congress’s statutory relocation-to-the U.S. restrictions]. I believe that it is the view of the department that we will observe the laws as passed by Congress and signed by the president. Only very rarely do we take the step of finding that an unconstitutional provision was something we could not manage—we would of course seek to work with Congress and the administration to resolve that issue.

Gerstein also reports that Lynch later said “she wasn't aware anyone in the administration was considering bypassing the restrictions in the law by arguing they unfairly interfere with the president's executive powers.”

Nothing in Lynch’s remarks would preclude the President from later concluding that the transfer restrictions are unconstitutional. The real significance of Lynch’s remarks, however, is that apparently no one in the White House has even raised the question of the constitutionality of the relocation restrictions with DOJ or OLC. The Justice Department – almost certainly OLC – has clearly been thinking about the issue over the years. The Defense Department in 2014 noted in passing that the Justice Department “concurred” in its disregard of the transfer restrictions in the Bowe Bergdahl swap. And OLC analysis was probably behind the NDAA signing statements that since 2011 have claimed that the transfer restrictions might in some circumstances be unconstitutional.

So DOJ/OLC has considered related questions in the past. But Lynch’s comments make pretty clear that the White House is not even advanced enough in its GTMO closure planning to have asked DOJ for its views on the constitutionality of disregarding the transfer restrictions in order to bring all of the detainees to the United States. This is very significant, I think. As I have suggested in the past, and as Marty Lederman explains in detail (in the third of an important three-part post), a lot of legal and practical hurdles would need to be overcome before the President could effect a move of the detainees to the United States. The hurdles include a very hard constitutional argument to disregard the relocation restrictions, a way to make large expenditures of unappropriated moneys in the teeth of the Anti-Deficiency Act, complex administrative questions, and more. (I recommend reading Lederman’s post carefully – it refutes the constitutional override arguments recently made by former Obama administration lawyers.) These legal and practical problems would need to be wrapped up before the administration could start the extensive planning (including prison retrofitting, etc.) needed to close GTMO before the President leaves Office in January 2017. None of this appears to have happened yet.

Last week Marty stated that he would be “very surprised if officials within the Administration are giving serious consideration to their proposal that the President should assert an alleged constitutional prerogative to disregard the NDAA restrictions.” Attorney General Lynch’s testimony strongly suggests that he was right. The administration does not appear to be taking the serious steps now that would be needed to close GTMO in the face of congressional transfer restrictions before the end of the President’s term.