In the current bill, three sections were added that limit Obama's handling of individuals held at Gitmo (1032-1034). Section 1032 prohibits the use of funds to try detainees, especially Khalid Sheikh Mohammed, in the United States. The section notes that the prohibition seems to apply only to those "held on or after January 20, 2009..." Wonder why that date and not all held since the start of the Global War on Terror? Section 1033 requires the administration to obtain the blessing of Congress before it transfers any prisoner at Gitmo to any foreign country or entity, and Section 1034 prohibits the use of funds to build prisons in the US to house those individuals detained at Gitmo.
It is clear that the provisions are aimed at denying Obama a promise made on the campaign trail in 2008--to close down the Gitmo facility. Are the Republicans in Congress really saying that the prisons in the United States are inadequate to detain violent individuals?
These provisions are certainly the kind of triggers that lead to a constitutional challenge in a signing statement. The Obama administration issued a "trial balloon" leak earlier this week to test the reaction to a constitutional signing statement. On January 4, the investigative reporting organization Pro Publica reported that the administration had "disclosed" that they were considering a signing statement to challenge the bill's objectionable provisions. That set off a flurry of media activity reporting on whether a signing statement would or would not come. All week long everyone waiting (well I certainly have been), and lo and behold on Friday afternoon (a Friday News Dump) the administration finally put all the waiting to rest with a signing statement to the bill.
In the "Statement by the President on H.R. 6523," President Obama dispensed with the formalities found in most signing statements (taking time to describe what the bill does) and went right to the objectionable provisions. Obama writes:
Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.
With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers. Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and therefore the effort to conclude detainee transfers in accord with our national security.
Now the language clearly is not as aggressive as what we should expect in a constitutional challenge. Normally the president would write that he was "construing" the provisions in a way that negates their constitutional problems. But despite the tame language, we should not fool ourselves into believing that the president was not challenging the defective provisions.
How do we know? Well in the last paragraph, Obama writes that not only will he work with the Congress to repeal the defective provisions, but will also "seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future." The key is "mitigate". That should be taken as a challenge--mitigate can mean using other funds to carry out transfers or trials, it can mean a lawsuit to challenge the provisions which the administration won't defend, and it can mean (though probably unlikely in this case) a refusal to enforce. It certainly merits watching the administration closely to see how it makes its next move.
There is also one more thing to note about this constitutional signing statement. And that involves the administration's continuing attempts to obscure the challenge. Given the attention paid to what the president would do with this bill, one would think that the signing statement would appear under the "Featured Legislation" section of the White House webpage. As of this moment (1/7/11 @ 6:45 p.m.) the "featured legislation" is a bill the President signed on Tuesday. If you go ahead and click the "Featured Legislation" link, it lists the bill by its formal name, but clicking on it takes you to the text of the bill itself. Instead, if you scroll down to the bottom of the webpage, under "Statements & Releases," the very first link is the constitutional signing statement, though the link reads: "Statement by the President on H.R. 6523," and not by its formal name, the "Ike Skelton National Defense Authorization Act for Fiscal Year 2011." It continues to leave me scratching my head that the administration separates the constitutional signing statement from the "Featured Legislation" section of the webpage. Say what you will about the previous administration, at least they kept all their signing statements in one place.
