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Obama Does Not Assert Executive Authority to Override Gitmo Transfer Funding Ban

Marcy has already gotten to this, but since I wrote about it previously, I thought I’d wrap it up. The President signed the defense authorization bill in a Friday afternoon news dump, and it had been rumored that he would assert executive authority through a signing statement, a la George Bush, to disregard the portions of the bill that banned the use of funds for transferring detainees from Guantanamo to the US for Article III court trials, or abroad for release. But instead, the President just condemned the provision and grudgingly said he’d abide by it.

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.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

In other words, I need the money to keep the Iraq and Afghanistan machines going, so I’ll give up on transfers for the next nine months (the bill covers the 2011 fiscal year, which ends at the end of September).

Now, I agree with Marcy, I didn’t want to see a signing statement asserting an override of a Congressional statute. That compounds a problem with a different problem. But I also agree with Adam Serwer that this is basically a surrender on Gitmo. The President will not be able to repeal the restrictions, and the provision, passed by a strongly Democratic Congress, will become boilerplate in the new, more Republican one.

The ACLU had an idea that the White House could use DoJ, State Department or Homeland Security funds for the transfers, since the only restriction here is on Defense Department funds. The signing statement does not weigh in on that at all. An administration official told TPMMuckraker “We’re continuing to review the provisions in the bill,” and would not comment on using non-DoD funds. Dafna Linzer writes:

The ACLU interpreted Obama’s statement favorably, but there were critics, too.

David Remes, a Washington lawyer who represents a number of detainees, said, “Obama should have issued no statement rather than this one, which is a confession of impotence” with regards to implementing his policies.

Benjamin Wittes of the Brookings Institution said the statement was so weak that it “borders on the trivial.”

“It not only fails to make a constitutional objection, it does not interpret the provision. All it does is complain,” he said.

To be clear, I’d rather a complaint than an outright rejection of Congressional lawmaking authority. In addition, the President did not put forward the indefinite detention executive order that was thought to be paired with this. And the ACLU option is at least available, though I don’t know whether the Administration will take it.

Ultimately, the most likely outcome is that Guantanamo detainees aren’t going anywhere anytime soon.

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David Dayen

David Dayen