Obama May Bypass Guantánamo Rules

The NYTimes reports that President Obama’s legal advisers, confronting the prospect of new restrictions on the transfer of Guantánamo detainees, are debating whether to recommend that he issue a signing statement asserting that his executive powers would allow him to bypass the restrictions, according to several officials. One option on the table, according to officials familiar with the deliberations, is for Mr. Obama to sign the bill into law but declare his opposition to the detainee transfer restrictions — which expire Sept. 30, at the end of the current fiscal year — by simply arguing that they are bad policy.

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administration rescinded that memorandum five days before leaving
office.

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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