Last week Harold Koh attempted to justify President Obama’s threatened veto of the NDAA on constitutional grounds. In short, Koh explains that Congress cannot place limits on the President’s power to transfer the remaining detainees from Guantanamo. Jack Goldsmith fisks Koh’s analysis, by noting that he fails to discuss leading precedents, including “discuss Hamdan, Hamdi, Youngstown, or Judge Kavanaugh’s analysis” in Kiyemba, as well as several OLC opinions. Goldsmith’s last paragraph sums up the issue:
In short, the arguments for a comprehensive presidential disregard of the homeland transfer restrictions are much more challenging than Koh portrays. And of course there are larger questions beyond these Article II legalities. The President obviously wants to fulfill his first-week-in-Office pledge to close GTMO. Assuming he can find an executive branch lawyer to write the opinion, is he really going to exercise a very controversial presidential power to disregard transfer restrictions that have been on the books for six years, and that enjoy wide congressional support, just as he is leaving office? And if he does, will he also direct Executive branch employees to spend millions of dollars in un-appropriated funds on the creation of detention-worthy U.S. facilities? And will executive officials follow such orders despite the possibility of criminal culpability under the Anti-Deficiency Act? And will the Attorney General alleviate these concerns by issuing a formal opinion guaranteeing no ADA prosecutions? I think the answers to all of these questions are “no.” If I am wrong, it will be high constitutional and political theater like we have not yet seen in the Obama years.
“High constitutional and political theater”? I’ll buy the popcorn–buckle up in for the final year of this administration.