Obama signs defense bill, rejects detainee provisions
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WASHINGTON -- President Barack Obama set aside his veto threat and late Wednesday signed a defense bill that imposes restrictions on transferring detainees out of military prisons in Afghanistan and Guantanamo Bay, Cuba. But Mr. Obama attached a signing statement claiming that he has the constitutional power to override the limits in the law.
Mr. Obama's move awakened a dormant issue from his 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 suspected terrorists 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 such as Yemen, where the bulk of remaining low-level detainees cleared for repatriation are from. 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 at Bagram Air Base in Afghanistan at a time when the future of U.S. detention operations there is murky.
Despite his objections, Mr. Obama signed the bill, 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 Parwan detainees, 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 he continued to believe that closing the Guantanamo prison was in this nation's fiscal and national security interests, Mr. Obama made a similar challenge to three sections that limit his ability to transfer detainees from the prison at the U.S. naval base in Cuba, either into the United States for a civilian court prosecution or for continued detention at another prison, or to another nation's custody.
It was unclear, however, whether Mr. Obama intended to follow through, or whether he was just saber-rattling as a matter of principle. The president had 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 had claimed.
Andrea Prasow, senior counterterrorism counsel and advocate at Human Rights Watch, which supports 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.
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 implement the new statutes. In recent decades, starting with the Reagan administration, presidents have used the device with far greater frequency than in earlier eras to claim a constitutional right to bypass or override new laws. The practice peaked under former 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, preferring vetoes of objectionable bills, 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, then-Sen. Obama criticized Mr. Bush's use of the device as an overreach. But once in office, he said he would use them only to invoke mainstream and widely accepted theories of the constitutional power of the president.
Meanwhile at Guantanamo, the military judge overseeing the trial of alleged Sept. 11 mastermind Khalid Sheikh Mohammed and four others has ruled that lawyers cannot make public even unclassified materials.
The ruling by the judge, Army Col. James L. Pohl, follows an order Dec. 6 in which he directed that any evidence or discussion about harsh interrogation techniques used against the five men also be kept secret. He issued the ruling despite human rights groups' accusations that the government was trying to hide the fact that the men were tortured.
The latest decision, issued Dec. 20 but just released Thursday, marks the second time the judge has sided with government prosecutors at U.S. naval base in Cuba, in what will probably be the only trial involving alleged Sept. 11, 2001, terrorist attack participants.
First Published January 4, 2013 12:00 am