President Obama's Signing Statement on Guantanamo Restrictions

President Obama on Friday issued a signing statement upon signing HR 6523, the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, taking issue with the restrictions on his authority to transfer Guantanamo detainees.  We most recently posted on this here.

The statement claims that the restrictions interfere with the President's Article II authority, but stop short of calling them unconstitutional.  The statement ends with a line that the administration will work with Congress to repeal those provisions--an unlikely prospect in the new Congress--underscoring the relatively passive approach here.

This statement is in stark contrast to earlier signing statements raising constitutional objections.  President Obama has previously declared some portions of legislation unconstitutional and flatly declined to enforce them.  (President Obama wasn't the first to do this, or even the most aggressive.  President George W. Bush issued a number of such statements, drawing heavy criticism for his unilateral, and questionable, determinations that some provisions were unconstitutional and for his resulting refusal to enforce them.  President Obama moved to reform the practice soon into his administration.)

For comparison, consider the text of the signing statement issued on Friday:

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 effort to protect the Nation and must be among the options avaiable 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 ot section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interferes 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 becuase 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.

Compare that relatively timid statement with the President's much more aggressive signing statement on signing the Omnibus Appropriations Act of 2009; here's just a taste:

The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

[As to restrictions on negotiations in foreign affairs] . . . I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

[As to restrictions on UN Peacekeeping Missions] . . . [t]his provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority.  Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

[As to restrictions on pay of federal employees who interfere with communications between federal employees and Congress] . . . I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Why the difference in the two signing statements? 

• One possiblity is that the Gutanamo restrictions touch a political nerve that the President would rather not aggrevate by declaring them outright unconstitutional and declining to enforce them.  In other words, the administration judged that the constitutionally correct position (that the restrictions are unconstitutional) did not sufficiently outweigh the likely political backlash of fully endorsing and actualizing that position.  This seems the most likely reason for the different tone on Friday.  If true, it means that the politics drove the constitutional practice and, as the President wrote, set a very dangerous constitutional precedent.  And because practice and precedent are important tools for constitutional interpretation (especially over Article II authority), the politics in some important ways changed the constitutional law.  The President's language about the interference with Article II authority and setting a dangerous precedent do little, if anything, to preserve the constitutional objection the next time Congress seeks to interfere with executive authority in this way.  Rather the restrictions set the precedent and practice: the restrictions in the legislation, not the timid signing statement, are what future congresses and presidents will look to in judging presidential authority in like situations.
• Another possibility is that the administration has come around to view the more aggressive variety of signing statements--those that declare a provision unconstitutional and decline to enforce it--are themselves undesirable (or even unconstitutional).  This seems consistent with the administration's early reevaluation of signing statements, but it seems inconsistent with its own practice (as above).  If this were the reason, we might have expected some additional signal from the administration that it's fundamentally changing its position on signing statements--even more than its earlier statements.
• A final possibility is that the administration will act as though this latest signing statement read the same way that the more aggressive style of signing statements read--that is, the administration will decline to enforce these provisions.  There's a small hint that this may be the direction the administration intends to move: the phrase "will seek to mitigate their effects" in the last line.  But it also seems utterly inconsistent with the administration's earlier position on signing statements and its more general commitment to transparency.  This would also result in especially grave political fallout once President Obama started closing Guantanamo and transferring detainees in violation of the restrictions: not only would the President have ignored the restrictions; he also would have publicly misled about his intentions in the signing statement.  This seems like the least likely reason for the difference in this most recent signing statement.

If ever there were a time for a signing statement with a strong constitutional objection, this would have been it.  (A veto, with a constitutional message, would have been much better.  But the timing and the politics wouldn't allow it here.)  Instead, the weaker signing statement and enforcement of the restrictions (even "mitigated") sets the precedent the next time Congress wants to interfere with core Article II powers of prosecution and foreign affairs.

SDS