At Huffington Post, Joseph V. Micallef says yes, relying in part on me:
The Constitution of the United States specifically gives the president the authority to negotiate treaties on behalf of the United States subject to their ratification by two-thirds of the Senate. The Constitution, however, makes no reference to who can terminate a treaty and whether the president needs the consent of the Senate to do so.
According to Michael Ramsey, a professor of law, at the University of San Diego Law School and a specialist in the areas of constitutional law and foreign relations law, Article II, Section 1, of the Constitution clearly states that, "the President has the executive power of the United States." Treaties are considered laws under Article VI of the Constitution and are the responsibility of the President to "execute." Professor Ramsey argues that when a president "decides that a treaty should no longer apply, he is executing the treaty" in accordance with the powers granted to him under the Constitution.
Secondly, according to professor Ramsey, from the very beginning of the U.S government, it was recognized that, as Thomas Jefferson, George Washington's Secretary of State wrote, "the transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department (i.e., the president), except as to such portions of it as are specifically submitted to the Senate." In other words, the conduct of the United States' foreign relations is clearly vested in the office of the president.
The Constitution does not specify that the consent of the Senate is necessary for the termination of a treaty. There are certainly plenty of precedents where presidents have terminated existing treaties without the consent of the Senate. In 1939, President Roosevelt terminated the Treaty of Friendship with Japan. President Carter terminated the Mutual Defense Treaty with Taiwan in 1979, when the United States formally recognized the People's Republic of China and its government in Beijing. President George W. Bush withdrew from the 1972 Anti-ballistic Missile (ABM) Treaty in January of 2002. In none of these cases did the sitting president seek Senate ratification of his actions.
I had not thought about the Guantanamo question before, but on reflection I agree (as to the constitutional issue). It's not just a fanciful hypothetical — see this article in the Washington Post from last year.
To be clear, I don't claim the President has power to terminate a treaty in violation of its terms. That would violate a supreme law of the land (per Article VI), which the President cannot do (per Article II, Section 3's take care clause). But (as quoted above) I do think the President, through his executive power, can terminate a treaty in accordance with its terms. Doing so does not violate the take-care obligation, because it does not violate the treaty. Instead, that is executing the treaty, which is affirmatively a presidential power.
Applied to Guantanamo, the answer seems straightforward. The Guantanamo lease arises from the 1934 U.S.-Cuba Treaty, which in turn incorporates two lease agreements from February and July of 1903 relating to Guantanamo and continues:
So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.
The February 1903 agreement says that the lease continues "for the time required for the purposes of coaling and naval stations" and the July 1903 agreement obligates the U.S. to make lease payments "as long as the [U.S.] shall occupy and use said areas of land by virtue of said agreement." Thus, as I read it, once the U.S. decides that the land is no longer "required for the purposes of coaling and naval stations," ceases to "occupy and use" the land and "abandon[s] the said naval station," the lease terminates by the terms of the treaty and the incorporated agreements. (For more background, see this excellent Congressional Research Service report). The constitutional question is whether the President has power to decide, on behalf of the United States, when the base is no longer required and should be abandoned.
The answer seems clearly to be yes. Abandoning the base and terminating the lease would not violate the treaty, and indeed it is contemplated by the treaty as a unilateral action of the United States; once the U.S. abandons, Cuba cannot continue to insist on the lease payment and the land returns to Cuba. There is no other termination provision (apart from modification by a new agreement). Thus, the decision to abandon is an implementation (execution) of the treaty. And in this case the President's power is even more secure because the commander-in-chief power presumably extends to decisions about where to base U.S. military forces.
But this is just the constitutional analysis. The ability to abandon the base might be constrained by statute for reasons having nothing to do with the treaty. For example, current U.S. law restricts the President's ability to move detainees held at Guantanamo to other places. If the President can't move the detainees, he can't abandon the base. There might be other statutes similarly limiting abandonment. (According to the CRS report, the House tried to include a provision expressly prohibiting closure of the base in the 2016 National Defense Authorization Act). But absent a statute, in my view the President has constitutional power to abandon the base and thus return it to Cuba.
Posted at 6:06 AM