--- title: Guantanamo Bay: Why Obama Hasn't Closed Gitmo description: 'It is hard to see how closing Guantanamo unilaterally will burnish President Obama’s legacy in the short run or the long run' canonical: https://time.com/4178779/obama-close-guantanamo-bay/ author: Jack Goldsmith article:opinion: true article:content_tier: free article:published_time: 2016-01-13T20:11:51.000Z article:modified_time: 2026-08-04T07:56:33.157Z article:section: Ideas og:title: Why Obama Hasn't Closed Guantanamo Bay—and Likely Never Will og:description: 'It's hard to see how closing Guantanamo will burnish President Obama’s legacy og:url: https://time.com/4178779/obama-close-guantanamo-bay/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt940778b74d0bc270/698878f60b72e3c1e46e7a5e/guantanamo.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 5049 og:image:height: 2840 og:image:alt: Protest in front of the White House against Guantanamo detention center og:type: article twitter:card: summary_large_image twitter:title: Why Obama Hasn't Closed Guantanamo Bay—and Likely Never Will twitter:description: 'It's hard to see how closing Guantanamo will burnish President Obama’s legacy twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt940778b74d0bc270/698878f60b72e3c1e46e7a5e/guantanamo.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # Why Obama Hasn't Closed Guantanamo Bay—and Probably Never Will > Sponsored content. 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Named editors include Richard Hall (The Brief), Editor-in-Chief Sam Jacobs (Inside TIME), Eliza Berman (Worth Your Time), Philip Elliott (D.C. Brief), Justin Worland (Future Proof) and Harry Booth (In the Loop). Health Matters is written by TIME's health desk. #### How do I sign up for a TIME newsletter? Go to time.com/newsletters, choose the newsletters you want and enter your email address. There is no cost and no subscription requirement. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-network-2026q3/newsletters?i=f547a95f-c5c2-4c3d-ac43-5e8ea5be19ba&cr=time-nl-network-2026q3-v1) ## Video: State of the Union in Under 4 Minutes [Watch (HLS stream): State of the Union in Under 4 Minutes](https://cdn.jwplayer.com/manifests/IYWlSLur.m3u8) (3:59)  _Published 2016-01-13. State of the Union in Under 4 Minutes_ by [Jack Goldsmith](https://time.com/author/jack-goldsmith/) ## Jack Goldsmith Jan 13, 2016 8:11 PM UTC  Protesters hold banners during a protest in front of the White House in Washington D.C. on Jan. 11, 2016. Protesters hold banners during a protest in front of the White House in Washington D.C. on Jan. 11, 2016. Erkan Avci—Anadolu Agency/Getty Images by [Jack Goldsmith](https://time.com/author/jack-goldsmith/) ## Jack Goldsmith Jan 13, 2016 8:11 PM UTC For months the Obama administration has raised the stakes on its seven-year pledge to close the Guantanamo Bay detention center. In November three former senior Obama administration attorneys [argued](https://www.washingtonpost.com/opinions/the-president-doesnt-need-congresss-permission-to-close-guantanamo/2015/11/06/4cc9d2ac-83f5-11e5-a7ca-6ab6ec20f839%5Fstory.html) [that](https://www.justsecurity.org/27298/false-choice-guantanamo-closure/) the president had the constitutional power to ignore the legal restrictions Congress has placed on bringing dangerous detainees to the United States. Presidential aides suggested that the White House was taking the argument seriously. And then last week, in preview interviews for the President’s State of the Union address, Chief of Staff Denis McDonough put down a marker about Guantanamo. The President “feels an obligation to his successor to close that, and that’s why we’re going to do it,” he [said](http://www.foxnews.com/politics/2016/01/10/obama-to-shut-guantanamo-before-leaves-office-says-white-house-chief-staff.html) on Fox News. It was thus somewhat of a surprise that the President mentioned Guantanamo in a single, half-hearted sentence in his State of the Union address. “I will keep working to shut down the prison at Guantanamo: it’s expensive, it’s unnecessary, and it only serves as a recruitment brochure for our enemies,” he said. But the President said nothing about how he intends to shut down the prison. His administration has promised Congress a concrete plan to do so for a long time. “I have asked for six and a half years for this administration to come forward with a plan — a plan that we could implement and close Guantanamo,” [said](http://bigstory.ap.org/article/d38f2b48f87f47bf9347c3df7880bb48/pentagon-plan-close-guantanamo-expected-options-listed) Senator John McCain in November. The Pentagon pledged that it would finally reveal its plan the week McCain made this statement, but nothing came. McDonough again promised a plan last week, which is why many people expected more detail from the President in his address. The reason the President has not yet proposed a plan for closing the Guantanamo Bay detention facility, and the reason he said so little about it in his self-consciously upbeat address, is that he lacks a plausible path to doing so. Closing Guantanamo would require the President to find a home for the approximately 100 detainees still there. Even if the President can transfer the less dangerous detainees to other countries under somewhat lenient congressional rules, he faces an absolute ban on bringing the other fifty or so more dangerous ones to the United States. Congress could in theory lift the ban and appropriate the money needed to retrofit a high-security prison in the United States. The chances of this happening before the President leaves office are zero, no matter what the President proposes. The President’s other option is to defy the transfer ban, as his former attorneys advised. But their argument is weak. “There’s very little to be said for” the argument, [according to](https://www.justsecurity.org/27563/guantanamo-problem-remains-insoluble-part-three-executive-disregard-gtmo-restrictions-solution/) Marty Lederman, Obama’s former Deputy Assistant Attorney General in the Justice Department Office of Legal Counsel, the Office that will advise the President on the legality of any such move. Lederman notes that a constitutional override argument “would present the same dangers, and threaten to establish the same troubling precedents, as when President Bush claimed the constitutional authority to disregard laws” related to national security — an authority, of course, that President Obama once vehemently disclaimed. Even if the President accepts the constitutional argument, he still faces obstacles. He has only a year to find and prepare a U.S. prison to house the detainees. This is not a long time, especially since Congress has barred him from spending funds to do so, which presents additional legal challenges. The President can power through all of these obstacles if he is determined and acts fast. With the swirl of his pen he could simply order subordinates today to begin the process of transferring the detainees to the United States in defiance of laws he has complied with for years. It is unclear whether a court would adjudicate such a brazen move, and even if it did, any judicial ruling would come too late to prevent it. And yet despite McDonough’s insistence that the President is “going to do it,” he likely won’t. The President wants to close the Guantanamo Bay facility before leaving office to fulfill his first-week pledge and enhance his legacy, which he is thinking about a lot these days. Presidential legacies are difficult to assess because they “depend on the climate in which historians render their verdicts,” noted Arthur Schlesinger, Jr. But it is hard to see how closing Guantanamo unilaterally will burnish President Obama’s legacy in the short run or the long run. Support for closing Guantanamo peaked in President’s Obama’s first year, and most Americans now oppose transferring the dangerous detainees to the United States. A provocative defiance of a law that embodies the popular will on an issue of national security by a late-term President whose seriousness in that context has been questioned lately would be unpopular and controversial. Congress would go ballistic. The issue would not go away in the next administration, as Republicans and many Democrats would try to reverse the President’s move. President Obama would thus be doing his successor no favors. He or she, and the presidency, would suffer dealing with the fallout. Candidate Clinton might be hurt by the fallout sooner if the President puts in motion the Guantanamo closure before the election, which he almost certainly will need to do. And what would the president’s legacy gains be, assuming the transfer sticks? He would have followed through, finally, on his first-week pledge to close Guantanamo. He will argue in his memoirs that he restored core U.S. values and dampened terrorist recruitment. But these arguments are likely to ring hollow. The terrorist threat will persist no matter what happens with Guantanamo. Historians will wonder why the President did so little to work with Congress to close Guantanamo, especially early on when he had more leverage. They will discount any achievement of unilateral closure as a result of the messy consequences that followed. Most importantly, over time it will not seem like the President changed the value equation. Fifty dangerous terrorists would remain in indefinite detention in a U.S. maximum security prison where they would likely have less freedom of movement than on the sunny and secure Cuban island. A new round of litigation would ensue, but Congress would quickly bolster the already-strong legal basis for detention, and courts that had no trouble upholding indefinite detention in Cuba would be unlikely to order the terrorists’ released into the United States. It won’t take long for critics on the left to talk about the stain of indefinite detention that President Obama alone brought to U.S. soil, a stain that critics on the right will say that the President bought at the price of the rule of law. President Obama’s long equivocation on this issue implies that he understands these consequences. His least bad option, it seems, is to appear to want very much to close Guantanamo (which he does), and to talk and act as if he is doing all he can, but to capitulate in the end. So expect that long-promised plan finally to come out soon; expect Congress to reject it; expect the President and his Team to publicly anguish over closing Guantanamo unilaterally; expect them to decide in the end that the rule of law — which the President holds dear and will play up in his memoirs — forbids it; and expect fifty or so dangerous terrorists to be locked up in indefinite military detention in Guantanamo when the next President assumes office on January 20, 2017. ## Transcript [00:00] Mr. Speaker, Mr. Vice President, Members [00:05] of Congress, My Fellow Americans. Tonight [00:12] marks the eighth year that I've come here to report on [00:16] the State of the Union. And for this final one, I'm [00:22] gonna try to make it a little shorter. I know some of you [00:25] are antsy to get back to Iowa. I've been there. [00:27] [ LAUGH ] I'll be shaking hands afterwards if you want [00:30] some tips. But for my final address to this chamber, I [00:34] wanna focus on the next five years, the next ten years. [00:38] And four big questions That I believe we as a country [00:41] have to answer. First, how do we give everyone a fair [00:45] shot at opportunity and security in this new economy? [00:48] How do we make technology work for us and not [00:51] against us? How do we keep America safe and lead [00:54] the world without becoming its policeman? How can we [00:57] make our politics reflect What's best in us and not [01:01] what's worst. The United States of America right now [01:05] has the strongest, most durable economy in the world. [01:09] We're in the middle of the longest streak of private [01:11] sector job creation in history. More than 14 million new [01:15] jobs, the strongest two years of job growth since the [01:19] 1990s, Our unemployment rate cut in half. Priority [01:23] number one is protecting the American people and [01:25] going after terrorist networks. [ APPLAUSE ] The United [01:28] States of America is the most powerful nation on Earth. [01:32] Period. [ APPLAUSE ] When you come after Americans, [01:35] we go after you and it may take time but we have long [01:38] memories and our reach has no limits Our foreign [01:41] policies to be focussed on threat from ISIS and [01:44] Al- Qaeda but it can't stop there. The world will look [01:49] to us to help solve these problems and our answer [01:51] needs to be more than tough talk. War calls to [01:55] corporate bombs [ INAUDIBLE ]. We also can't Try to [01:59] take over and rebuild every country that falls into [02:03] crisis. But on issues of global concern, we [02:07] will mobilize the world to work with us. And make sure [02:11] other countries pull their weight. Leadership means a [02:14] wise application of military power. And rallying [02:18] the world behind causes that are right. The future we [02:21] want. Opportunity and security for our families, a [02:25] rising standard of living, a sustainable peaceful [02:30] planet for our kids. But I can't do these things on my [02:33] own. So my fellow Americans, whatever you may [02:36] believe, Whether you prefer one party or no [02:41] party, whether you supported my agenda or fought as [02:44] hard as you could against it, our collected futures [02:48] depends on your willingness to uphold your [02:53] duties as a citizen. To vote. But [02:57] I can promise that a little over a year from now, when I [03:01] no longer hold this office, I will be right there with you [03:03] as a citizen. Inspired by those voices of [03:08] fairness and vision, of grit and good [03:12] humor and kindness that helped America travel so far. [03:17] That's the America I know. that's the country we love. [03:22] Clear eyed, big hearted, undaunted [03:27] by challenge. Optimistic, that unarmed [03:31] truth and unconditional love will have the final word. [03:35] [ APPLAUSE ] That's what makes me so hopeful about [03:38] our future. I believe in change because [03:42] I believe in you, the American people. And that's why I [03:46] stand here as confident as I have ever been that the [03:48] state of our union [ APPLAUSE ] Is strong. [ APPLAUSE ] [03:48] Thank you. God bless. [ APPLAUSE ] God bless the [03:50] United States of America. ```json [{"@context":"https://schema.org","@type":"OpinionNewsArticle","@id":"https://time.com/4178779/obama-close-guantanamo-bay/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/4178779/obama-close-guantanamo-bay/"},"headline":"Why Obama Hasn't Closed Guantanamo Bay—and Probably Never Will","datePublished":"2016-01-13T20:11:51.000Z","dateModified":"2026-08-04T07:56:33.157Z","description":"'It is hard to see how closing Guantanamo unilaterally will burnish President Obama’s legacy in the short run or the long run'","url":"https://time.com/4178779/obama-close-guantanamo-bay/","keywords":["politics","White House","Obama","state of the union","President","Guantanamo"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt940778b74d0bc270/698878f60b72e3c1e46e7a5e/guantanamo.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Jack Goldsmith","jobTitle":null,"url":"https://time.com/author/jack-goldsmith/"}],"articleSection":"Ideas","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt940778b74d0bc270/698878f60b72e3c1e46e7a5e/guantanamo.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"Protest in front of the White House against Guantanamo detention center","caption":"Protest in front of the White House against Guantanamo detention center","creditText":"Erkan Avci—Anadolu Agency/Getty Images","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"https://time.com/section/ideas/","name":"Ideas"}},{"@type":"ListItem","position":2,"item":{"@id":"https://time.com/tag/politics/","name":"politics"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/4178779/obama-close-guantanamo-bay/","name":"Why Obama Hasn't Closed Guantanamo Bay—and Probably Never Will"}}]},{"@context":"https://schema.org","@type":"VideoObject","name":"State of the Union in Under 4 Minutes","description":"State of the Union in Under 4 Minutes","thumbnailUrl":"https://cdn.jwplayer.com/v2/media/IYWlSLur/poster.jpg?width=720","uploadDate":"2016-01-13T04:30:51.000Z","contentUrl":"https://cdn.jwplayer.com/manifests/IYWlSLur.m3u8","embedUrl":"https://time.com/4178779/obama-close-guantanamo-bay/","duration":"PT3M59S","potentialAction":{"@type":"SeekToAction","target":"https://time.com/4178779/obama-close-guantanamo-bay/?jw_start={seek_to_second_number}","startOffset-input":"required name=seek_to_second_number"}}] ```