During President Obama’s visit to Cuba, unelected leader Raul Castro (contrary to all media accounts, he is not a President in any meaningful definition of the word), said that Guantanamo Bay must be returned to Cuba to restore relations:
He also said in order for the countries to move forward, “it will also be necessary” for the U.S. to return Guantanamo, which is based on the eastern end of Cuba.
Gitmo is where the U.S. is operating a detention center for terrorism suspects, as well as the navy base.
Mr. Castro referred to Gitmo as “illegally occupied” territory.
One key obstacle to this goal is that under current law, the President cannot remove the detainees from Guantanamo without Congress’s approval, which is not forthcoming. Over the past year, there have been murmurings that the President could assert that the National Defense Authorization Act places an unconstitutional limitation on the Commander-in-Chief’s powers (see here, here, here). The White House has (more or less) shot down the Article-II-override argument.
But now, there is an additional countervailing interest–the restoration of relations with Cuba. Citing Zivotofsky, maybe the President could argue that Guatanamo Bay is in fact illegally occupied–contrary to decades of American policy–and that it does in fact belong to Cuba. As a result, maintaining a base at Gitmo conflicts with the President’s recognition power, and thus the NDAA is unconstitutional. This is a far better argument that a straight-up Article II override position.