James Inhofe, constitutional scholar

The Oklahoma Republican advances a novel theory about who's responsible for prosecutions at Guantanamo Bay.

By Alex Koppelman

Published February 4, 2009 9:05PM (EST)

Oklahoma Republican Sen. James Inhofe was on Fox News Wednesday, talking about legislation he just introduced with the intention of forcing President Obama to keep the military prison at Guantánamo Bay open. During the interview, Inhofe shared this pearl of wisdom regarding Obama:

Well, I think that giving credit -- he's got a lot of things on his plate right now. And the whole idea of closing Guantanamo Bay -- his statement came out -- he stated two things. First of all, he wanted to suspend legal proceedings. Now, the judge down there, you noticed, said, "No, we're not going to do it." That's kind of a classic separation of powers, because we've got to continue prosecuting these people.

That's an interesting view of the separation of powers outlined in the Constitution, to put it mildly. It's the executive branch that's responsible for deciding to prosecute people, not the judicial branch. (This is somewhat different, as it's a military court, but the theory basically holds -- the president is, after all, the commander in chief.) Obviously, civilian judges have the power to reject trial delays because of the Sixth Amendment's guarantee of a speedy trial, but that's a whole separate issue from "we've got to continue prosecuting these people." That rationale falls squarely into the president's portfolio.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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