Will Paul Ryan Make His Mark As Speaker By Instituting Impeachment Procedures Against President Obama?

Wisconsin Ayn Rand devotee Paul Ryan just started his new job as Speaker of the dysfunctional House Republicans. And he's already headed for a showdown with the White House. Remember how on his very first day in office President Obama signed an oder to shut down the torture prison at Guantánamo? Conservatives in Congress have been thwarting him ever since, most recently by passing a military budget that included language prohibiting the president from doing just that. It passed the Senate Tuesday 91-3, only Bernie, Jeff Merkley (D-OR) and Ron Wyden (D-OR) objecting. It had passed the House Nov. 5, also by a lopsided margin, 370-58, most of the opponents being progressives who favor shuttering Guantánamo, like Raul Grijalva (D-AZ), Keith Ellison (D-MN), Mark Pocan (D-WI), Alan Grayson (D-FL), Jerry Nadler (D-NY), Jan Schakowsky (D-IL), Mike Honda (D-CA), Judy Chu (D-CA), Jim McDermott (D-WA) and Xavier Becerra (D-CA).

Meanwhile, President Obama has ordered the Pentagon to draw up plans to close down the prison and reassign the 112 prisoners-- 10 of whom are facing criminal charges under the military justice system-- to the U.S. Ryan and Mitch McConnell have warned Obama not to use an executive order to circumvent the law. Last week former White House counsel Greg Craig penned an OpEd in the Washington Post claiming Obama doesn't need congressional approval. "Under Article II of the Constitution, the president has exclusive authority to determine the facilities in which military detainees are held. Obama has the authority to move forward," he wrote. "He should use it."

Congress has enacted legislation banning the use of funds to transfer Guantanamo detainees to the United States for any purpose, including incarceration and prosecution. But that irrational prohibition need not inhibit the closure of the facility. The restriction is plainly unconstitutional.

The Constitution assigns Congress the important power to “declare war.” But Article II designates the president as “Commander in Chief” of the military. Recognizing that the president needs flexibility to select among tactical options in the conduct of war, the Framers explicitly rejected giving Congress the power to “make war,” rather than declare war. As Alexander Hamilton explained in the Federalist Papers, “Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

Thus the president, in his capacity as commander in chief, has the exclusive authority to make tactical military decisions. Congress can declare war but cannot direct the conduct of military campaigns. It can pass generally applicable military regulations but cannot direct the military’s response to contingent developments. It 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. Yet that is precisely what Congress has attempted.

Congress’s purported ban on funding any movement of detainees from Guantanamo Bay to the United States restricts where “law-of-war” detainees can be held and prevents the president from discharging his constitutionally assigned function of making tactical military decisions. Accordingly, it violates the separation of powers.

The determination on where to hold detainees is a tactical judgment at the very core of the president’s role as commander in chief, equivalent to decisions on the disposition of troops and the use of equipment. The question here is not whether the president can unilaterally take the nation to war or hold detainees without congressional authorization. The question is whether Congress can tell the president where military detainees must be held. The answer is an emphatic no. One need not accept a particularly broad view of executive authority-- let alone the Bush administration’s sweeping view that the president has “exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war” (an extravagant assertion with which we disagree)-- to see that the restrictions Congress has imposed are unconstitutional.

...Obama has explained that Guantanamo “weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists.” Congress has tried to force the president to maintain a specific military detention facility for specific detainees that, in his judgment, is harmful to U.S. national security and far too costly. That is no way to conduct a war, and the Constitution does not permit it.

The president has attempted to work with Congress to eliminate the detainee transfer restrictions. From a practical standpoint, the constructive involvement of Congress would be helpful. But the president does not need Congress’s authorization to act. If Congress is unable or unwilling to work with him, Obama should use his exclusive authority as commander in chief to move the limited number of detainees who cannot be transferred to foreign countries to secure institutions in the United States, shutter this notorious facility, and end this blight on American values and national security.

Even a senator as in the pocket of the Military-Industrial Complex as Dianne Feinstein (D-CA), vice chair of the Intelligence Committee, says it's time to shut Guantánamo down. She wrote an editorial for the NY Times urging Congress to help, not hinder Obama in doing that. "Seeing the facility firsthand reinforces my belief in the great need to close this prison, which has cost us billions of dollars and is a real threat to our national security. Simply put, Guantánamo is one of the best propaganda tools that terrorists have today. Our enemies use it to justify terrorism and recruit others to carry out violent jihad, and our allies continue to criticize it as a violation of the rule of law." She points out that even George Bush, Condoleezza Rice and Colin Powell wanted it closed down.

The cost per detainee at Guantánamo is 30 times more than that of the most secure detention facilities in the United States. It’s hard to justify spending more than $2.5 million per detainee when it costs just $86,374 to hold an inmate in the so-called Supermax federal penitentiary in Colorado.

Even if one can get past the national security, legal and moral concerns about holding individuals for an indefinite amount of time without charge or trial, there’s simply no getting around the fact that Guantánamo is a huge waste of money.

Ryan, however, looking for a fight, took a moment out of his frantic work on destroying Social Security and Medicare to announce that "He can't. He doesn't have the authority to do it. It's just that clear."