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Originally Posted by taxwonk
The Congress also appropriated discretionary fund for the military. They can't tell him he can not use money that has already been appropriated for discretionary spending. That would be a usurping of Executive power.
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If Congress says, very clearly, that federal money cannot be used to incarcerate or try these people in the United States, then the federal government cannot spend money on those things. That is what has happened. I happen to think that Congress is very, very wrong in its judgment, but we are stuck with the Congress we have, not the one we want.
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Also, as I noted above, I am fairly certain that the United States doesn't have the authority to kidnap people from their homelands, transport them thousands of miles away and leave them there to rot. As Chief Executive, Obama would be required to follow international law absent a declaration of war on the world, or a bare assertion of military power.
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Obama is stuck with a mess that President Bush created.* If you assume that the only people left at Guantanamo are those whom Obama would move to the US and try there, then I doubt that there's any international law that says he must free them.
Instead of kidnapping people, Obama is killing them with drones. I've already said that I think this is bad policy, but if you accept that he is killing people who are at war with the United States and who are otherwise outside our reach, I'm not sure it's illegal. Some big caveats there, though.
