# Suppose Obama ignores Congress and transfers Gitmo detainees to US federal prison **URL:** \ **Category:** Great Debates\ **Created:** [January 19, 2016, 12:50am UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539 "2016-01-19T00:50:58Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [January 19, 2016, 1:56pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/21 "2016-01-19T13:56:10Z")
I suppose one of the prisoners might have standing to sue, though it’s hard to imagine why one would. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2016, 2:21pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/22 "2016-01-19T14:21:19Z")
> [@kaylasdad99](#): > > Well, I have forbidden the election of another Republican president for the remainder of eternity, so it’s moot, but as a thought experiment, one supposes that the interval between the election and Inauguration Day would be sufficient time to close the facility, stand the military down and turn the entire installation to the Cuban government. > > Checkmate, I should think. Just so you know, the only reason I can imagine, in extremity of distress, casting a vote for Trump is to throw this business back in your face… holding aloft my bloody severed nose and screaming, “Ha! Face, take that!” A President Rubio, on the other hand, would make responding to this near unmitigated bliss. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 19, 2016, 2:25pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/23 "2016-01-19T14:25:43Z")
> [@Richard\_Parker](#): > > Maybe the question was too inside baseball after all, but I haven’t seen anyone make a case for anyone having standing to sue. > > John Mace is of course right about impeachment or electoral reversal. Does impeachment strike anyone as likely for this? It doesn’t strike me as likely given both the underlying politics and the colorable (if ultimately incorrect) legal case for the President having this as an exclusive authority. **Little Nemo** , in post 17, might well be right in that most all of Republicans would secretly be relieved that the whole mess was over. I brought up impeachment simply as a way of avoiding the issue of standing. It probably would have been a real option 5 or 6 years ago, but at this point, maybe not. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2016, 2:42pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/24 "2016-01-19T14:42:08Z")
To answer the OP: (1) The President does have the power under the Constitution. (2) Because he either has Art II power to do the act, and the statute would be be unconstitutional derogation of that power; or if he doesn’t, but no one has standing under Art III. ---
**Author:** ![up\_the\_junction](https://avatars.discourse-cdn.com/v4/letter/u/f1d935/32.png) [@up\_the\_junction](https://boards.straightdope.com/u/up_the_junction)\ **Post date:** [January 19, 2016, 2:58pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/25 "2016-01-19T14:58:15Z")
> [@jasg](#): > > Could he just give Gitmo back to Cuba? First they came for Gitmo, then New Mexico and Arizona, then Louisiania … ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 19, 2016, 5:05pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/26 "2016-01-19T17:05:47Z")
> [@jasg](#): > > Could he just give Gitmo back to Cuba? I imagine that Congress has specifically legislated funds to maintain Gitmo in the Defense Department’s appropriations, so closing Gitmo would be an unconstitutional impoundment. Standing might again be an issue, although if DOD uses any contractors at the base, they would have probably have standing to sue. Similarly, if DOD uses contractors for the day-to-day upkeep of the prisoners in Gitmo, those contractors might have standing to sue if the prisoners were to be moved. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 5:12pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/27 "2016-01-19T17:12:11Z")
Um, well, the inmates themselves would probably have standing to sue for being detained without trial or other due process, presuming they weren’t already tried in the military tribunals. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 19, 2016, 5:43pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/28 "2016-01-19T17:43:46Z")
> [@lance\_strongarm](#): > > Um, well, the inmates themselves would probably have standing to sue for being detained without trial or other due process, presuming they weren’t already tried in the military tribunals. They have that standing now, and have litigated those issues using habeas corpus. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 6:04pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/29 "2016-01-19T18:04:01Z")
> [@Richard\_Parker](#): > > They have that standing now, and have litigated those issues using habeas corpus. Yeah, which is why I don’t get your question. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 19, 2016, 6:07pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/30 "2016-01-19T18:07:51Z")
The question is who would have standing to challenge the transfer. That requires an injury traceable to the transfer. What injury would a detainee have that is caused by being transferred? Maybe conditions in Gitmo are nicer than federal prison in the US? ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [January 19, 2016, 6:14pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/31 "2016-01-19T18:14:25Z")
If Obama did order the closing of the base and he didn’t explicitly defy Congress by ordering the prisoners Stateside, what would likely happen with them? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 19, 2016, 6:17pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/32 "2016-01-19T18:17:32Z")
> [@Tom\_Tildrum](#): > > Similarly, if DOD uses contractors for the day-to-day upkeep of the prisoners in Gitmo, those contractors might have standing to sue if the prisoners were to be moved. That’s interesting. I guess then the question would be what their cause of action is. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 19, 2016, 6:18pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/33 "2016-01-19T18:18:46Z")
> [@CarnalK](#): > > If Obama did order the closing of the base and he didn’t explicitly defy Congress by ordering the prisoners Stateside, what would likely happen with them? Military detention elsewhere, I would guess. Navy vessels? I would have thought the statute also forbid closing the base, but I haven’t read it. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [January 19, 2016, 6:33pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/34 "2016-01-19T18:33:29Z")
> [@Richard\_Parker](#): > > The question is who would have standing to challenge the transfer. That requires an injury traceable to the transfer. What injury would a detainee have that is caused by being transferred? > > Maybe conditions in Gitmo are nicer than federal prison in the US? Ah, I see. I think the inmates would have standing. They could claim an injury, and lose, but that doesn’t mean they don’t have standing. They’re the ones affected, and anything that affects them is subject to a lawsuit. I think you’re asking if they would oppose the transfer, and why. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 19, 2016, 6:42pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/35 "2016-01-19T18:42:15Z")
> [@John\_Mace](#): > > And the Republican president will send them right back, as a “fuck you” gesture to Obama. The difference is that once they’re in the territories of the United States, they have full access to the federal courts, which I would expect would include the power to seek a federal court order barring their removal from the country without due process. The President can’t deport people by executive fiat. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 19, 2016, 6:47pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/36 "2016-01-19T18:47:23Z")
> [@lance\_strongarm](#): > > Ah, I see. > > I think the inmates would have standing. They could claim an injury, and lose, but that doesn’t mean they don’t have standing. They’re the ones affected, and anything that affects them is subject to a lawsuit. > > I think you’re asking if they would oppose the transfer, and why. No, their claim of an injury would be scrutinized before the suit proceeds if there is a challenge to their standing. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 19, 2016, 6:50pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/37 "2016-01-19T18:50:09Z")
> [@Northern\_Piper](#): > > The difference is that once they’re in the territories of the United States, they have full access to the federal courts, which I would expect would include the power to seek a federal court order barring their removal from the country without due process. > > The President can’t deport people by executive fiat. It’s more complicated than you might think. Even if transferred here, they might not necessarily be considered admitted into the country for due process purposes. Nor is it clear whether they would have greater due process rights than they do now based on Boumediene et al. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [January 19, 2016, 7:05pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/38 "2016-01-19T19:05:44Z")
> [@Richard\_Parker](#): > > I would have thought the statute also forbid closing the base, but I haven’t read it. IANAL, but that would seem to me an overstep of their authority. The commander in chief isn’t allowed to cancel a lease? Regardless, I certainty haven’t seen the base’s continued existence mentioned in any news story, only the prison. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 19, 2016, 7:16pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/39 "2016-01-19T19:16:07Z")
I suppose the states designated to receive the prisoners might have standing (under the theory from the EPA case and the recent immigration litigation), if the presence of those prisoners could constitute an injury. > [@Richard\_Parker](#): > > That’s interesting. > > I guess then the question would be what their cause of action is. Perhaps some form of breach of contract, although it occurs to me that their contracts probably have some sort of termination-for-convenience clause. ---
**Author:** ![theR](https://avatars.discourse-cdn.com/v4/letter/t/977dab/32.png) [@theR](https://boards.straightdope.com/u/theR)\ **Post date:** [January 19, 2016, 7:46pm UTC](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539/40 "2016-01-19T19:46:00Z")
> [@Richard\_Parker](#): > > Military detention elsewhere, I would guess. Navy vessels? > > I would have thought the statute also forbid closing the base, but I haven’t read it. So far I believe all the transfers have been to other countries. [There were about 245 when Obama took office and now fewer than 100 are left at Gitmo](http://abcnews.go.com/International/wireStory/fewer-100-guantanamo-prisoners-left-10-leave-oman-36286626). About a third of those remaining have also been approved for release. The article says Congress has forbidden transfers to the USA or to Yemen, but those are the only two countries mentioned. [Previous page](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539.md?page=1) [Next page](https://boards.straightdope.com/t/suppose-obama-ignores-congress-and-transfers-gitmo-detainees-to-us-federal-prison/743539.md?page=3)