President Obama has an interesting definition of transparency. For claiming to be on the up and up, he has been awfully cagey when it comes to things he does not want the public or the press to know about. Just last week, on the Friday before Christmas, when everyone and their brother was heading out of town, Obama releases a signing statement to an omnibus spending bill that had at least 23 separate, constitutional challenges. And this when his administration had been rattling the cage about his constitutional objections to the National Defense Authorization Act for FY2011. Sort of like Three Card Monte. Now on New Years Eve--in a move reminiscent of George W. Bush's signing statement to the "Department of Defense, Emergency Supplemental Appropriations..." bill that contained the ban against torture, which Bush released December 30, 2005, the Obama administration released the signing statement to the National Defense Authorization Act for FY 2012, hereafter NDAA.
A couple of interesting things up front. First, unlike the previous signing statement, this signing statement has been filed under "Statements & Releases" and not "Presidential Memoranda." A distinction with a difference. Second, this was a difficult signing statement to take apart because in part he uses the language of a constitutional signing statement, but I don't think he is making constitutional challenges. For instance, in one section, Obama doesn't exercise a constitutional challenge, but he makes clear that he may down the road. For instance, in the paragraph dealing with implementation procedures, Obama writes "...I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not lmited to seeking the revision or repeal of provisions should they prove to be unworkable." So it isn't a constitutional challenge more than a veiled threat.
The third thing of interest--just minor--is that Obama uses his guidance to interpretation by relying upon the conference report that accompanied the legislation--Obama writes: "Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee statuts determinations in Afghanistan are subject to the requirements of this section." I say this is interesting because Presidents make it a habit of objecting to be bound to any extraneous legislative matter that is not in the text of the law itself. For instance, Congress will routinely define sections of a bill by the deliberations that took place on the floor of the House or the Senate, or in a report that came from one of the congressional committees. My sense in this case is that the White House objected to a provision of the bill, and to get it passed, the White House & the Congress came to an understanding in Conference that let the bill get sent to the White House and signed. It isn't the first time the president has referenced a conference report in a signing statement, but it is interesting the contradiction.
Now on to what did get challenged! I found at least 10 constitutional challenges in this signing statement--again, there may be more, but it was difficult to ascertain whether his "intent to construe" was really based on constitutional prerogatives or was instead guided by the room that Congress allows him to move?
First, as promised, the administration once again dinged two provision that tries to tie the administration's hands when it comes to handling detainees. First, there is Gitmo. The Congress has been adamant--as a political ploy--to make an issue out of trying Gitmo detainees in the US, despite the fact that the Bush administration did just that. And in a swipe, Obama states in full rhetorical flourish:
For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.
The other challenge was the restriction on allowing the executive branch to transfer detainees to a 3d party country. Obama also dings this provision as a violation of separation of powers, and will "interpret them to avoid the constitutional conflict."
The rest of the challenges are related to Congressional meddling into foreign affairs, either the US relationship with Russia to the imposition of sanctions to Iran. In each of the provisions, Obama argues they violate foreign affairs and diplomatic communications, as well as may impact national security secrets, and he will treat them each as non-binding.
