The president signed a U.S. defense bill that limits the transfer
of detainees from military prisons in Afghanistan and Guantanamo
Bay. But he attached a statement asserting power to override the
limits.
President Barack Obama has set aside a veto threat and signed a
defense bill that imposes restrictions on transferring detainees out
of military prisons in Afghanistan and Guantanamo Bay, Cuba. But he
attached a signing statement claiming that he has the constitutional
power to override the limits in the law.
The move awakened a dormant issue from Mr. Obama's first term:
his broken promise to close the Guantanamo prison. Lawmakers
intervened by imposing statutory restrictions on transfers of
prisoners to other countries or into the United States, either for
continued detention or for prosecution.
Now, as Mr. Obama prepares to begin his second term, Congress has
tried to further restrict his ability to wind down the detention of
terrorism suspects worldwide, adding new limits in the National
Defense Authorization Act of 2013, which lawmakers approved in late
December.
The bill extended and strengthened limits on transfers out of
Guantanamo to troubled nations like Yemen, the home country of the
bulk of the remaining low-level detainees who have been cleared for
repatriation. It also, for the first time, limited the Pentagon's
ability to transfer the roughly 50 non-Afghan citizens being held at
the Parwan prison in Afghanistan at a time when the future of U.S.
detention operations there is murky.
Despite his objections, Mr. Obama signed the bill late Wednesday,
saying its other provisions on military programs were too important
to jeopardize. Early Thursday, shortly after midnight, the White
House released the signing statement in which the president
challenged several of its provisions.
For example, in addressing the new limits on the transfers from
Parwan, Mr. Obama wrote that the provision "could interfere with my
ability as commander in chief to make time-sensitive determinations
about the appropriate disposition of detainees in an active area of
hostilities."
He added that if he decided that the statute was operating "in a
manner that violates constitutional separation of powers principles,
my administration will implement it to avoid the constitutional
conflict" -- legalistic language that means interpreting the statute
as containing an unwritten exception a president may invoke at his
discretion.
Saying that he continued to believe that closing the Guantanamo
prison was in the country's fiscal and national security interests,
Mr. Obama made a similar challenge to three sections that limit his
ability to transfer detainees from Guantanamo, either into the
United States for prosecution before a civilian court or for
continued detention at another prison, or to the custody of another
nation.
It was not clear, however, whether Mr. Obama intended to follow
through, or whether he was just saber-rattling as a matter of
principle. He made a similar challenge a year ago to the Guantanamo
transfer restrictions in the 2012 version of the National Defense
Authorization Act, but -- against the backdrop of the presidential
election campaign -- he did not invoke the authority he claimed.
Several officials said that it was not certain, even from inside
the government, what Mr. Obama's intentions were. While the signing
statement fell short of a veto, they said its language appeared
intended to preserve some flexibility for the president to make a
decision later about whether to make a new push to close the
Guantanamo prison amid competing policy priorities.
Andrea Prasow, senior counterterrorism counsel at Human Rights
Watch, which advocates closing Guantanamo, criticized Mr. Obama for
not vetoing the legislation despite his threat to do so.
"The administration blames Congress for making it harder to close
Guantanamo, yet for a second year President Obama has signed
damaging congressional restrictions into law," she said. "The burden
is on Obama to show he is serious about closing the prison."
About 166 men remain at the prison.
Signing statements are official documents issued by a president
when he signs bills into law that instruct subordinates in the
executive branch about how to carry out the new statutes.In recent
decades, starting with the Reagan administration, presidents have
used signing statements with far greater frequency than in earlier
eras to claim a constitutional right to bypass or override new laws.
The practice peaked under President George W. Bush, who used
signing statements to advance sweeping theories of presidential
power and challenged nearly 1,200 provisions over eight years --
more than twice as many as all previous presidents combined.
The American Bar Association has called upon presidents to stop
using signing statements, calling the practice "contrary to the rule
of law and our constitutional system of separation of powers." A
year ago, the group sent a letter to Mr. Obama restating its
objection to the practice and urging him to instead veto bills if he
thinks sections are unconstitutional.
As a presidential candidate, Mr. Obama sharply criticized Mr.
Bush's use of the device as an overreach. Once in office, however,
he said that he would use it only to invoke mainstream and widely
accepted theories of the constitutional power of the president.
In his latest signing statement, Mr. Obama also objected to five
provisions in which Congress required consultations and set out
criteria over matters involving diplomatic negotiations about such
matters as a security agreement with Afghanistan, saying that he
would interpret the provisions so as not to inhibit "my
constitutional authority to conduct the foreign relations of the
United States."
Mr. Obama raised concerns about several whistle-blower provisions
to protect people who provide certain executive branch information
to Congress -- including employees of contractors who uncover waste
or fraud, and officials raising concerns about the safety and
reliability of nuclear stockpiles.
He also took particular objection to a provision that directs the
commander of the military's nuclear weapons to submit a report to
Congress "without change" detailing whether any reduction in nuclear
weapons proposed by Mr. Obama would "create a strategic imbalance or
degrade deterrence" relative to Russian stockpiles.
The provision, Mr. Obama said, "would require a subordinate to
submit materials directly to Congress without change, and thereby
obstructs the traditional chain of command."
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News Column
Obama Signs Bill; Reserves Power to Bypass Military Prison Transfer Curbs
Jan. 4, 2013
Charlie Savage
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Source: (C) 2013 International Herald Tribune
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