The Independent Institute's Anthony Gregory argues that the President "has the plenary authority to release war captives," because they were "captured by the executive branch itself." This seems bizarre to me. The executive branch arrests and detains all persons who are ever arrested or detained, since the President (or governor, or whatever) executes the law by arresting and detaining. But the executive doesn't have plenary authority to release them. With one notable exception, a governor doesn't just have authority to release prisoners willy-nilly, and efforts to do so would run serious public safety risks.
And it's important to remember that the law Pres. Obama violated is not a mere "notice" requirement. This is a requirement that the President take steps to ensure the detainee will not again take up arms against the U.S. That has been a condition of releasing POWs or detainees from time immemorial, and is even included in the Geneva Conventions, ratified by Congress. There's nothing unusual in Congress insisting upon it as a condition of release, or putting that insistence into law under its authority to regulate the military and so forth. Gregory writes that it would be "perverse if the president could set up a military prison at Guantanamo, round up prisoners...but then couldn’t release them." But there's nothing perverse about that. The law ordinarily limits what executives can do, and it's unsurprising that Congress would take steps during one administration to prevent future administrations from freeing prisoners except under certain circumstances--such as ensuring that the detainees won't fight again.
However, there is the power of the pardon. That is something that's unlimited and unilateral--something the president can do which Congress can't control. At the end of the Civil War, the Johnson Administration used the power when Congress wanted conditions imposed on forgiving the former Confederates. If Obama wanted to likewise pardon the Taliban without condition and in spite of Congress's desires, I think he could do that (whatever the political consequences). Suffice to say, that isn't what he did.
Procedures and details matter. I think the Guantanamo prison is unconstitutional and should be abolished without delay. But the system of checks and balances was designed for a reason, and cannot be set aside in cases of good intentions without creating serious risks in the future. There's a legal method for the President to transfer detainees out of Guantanamo--and Obama ought to have followed the law. His failure to do so has put us all at risk.
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