But the administration is also considering whether he should go further by issuing a signing statement — a formal document recording a president’s interpretation of a new law for the rest of the executive branch to follow — asserting that he has the constitutional power to disregard the restrictions. Under the latter approach, the president would assert that as the head of the executive branch and commander in chief, his prosecutorial discretion and wartime powers would allow him to lawfully bring detainees into the United States for trial or to transfer them to other countries as he sees fit.
In 2002, under President George W. Bush, the Justice Department’s Office of Legal Counsel wrote
that Congress has no power to limit the transfer of detainees because
“the president has plenary constitutional authority, as the commander in
chief, to transfer such individuals who are captured and held outside
the United States to the control of another country.” The Bush
administration rescinded that memorandum five days before leaving
In 2006, the American Bar Association declared
that presidents should veto legislation they view as flawed rather than
issue signing statements, which the group portrayed as “contrary to the
rule of law and our constitutional separation of powers.” One member of
the Obama legal team, Harold Koh, the State Department legal adviser,
was a member of a task force that developed that declaration.
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