Signing Statement on NDAA

The White House on Saturday issued a signing statement on the National Defense Authorization Act, which we covered most recently here.  There are two principal issues here.  The first relates to authorities that Congress seeks to grant to the President, including, apparently, the authority to detain U.S. citizens in military custody.  The second relates to restrictions on authorities.  The signing statement deals with both.

As to authorities, the President clarified that the Administration will not use authority in the NDAA to detain U.S. citizens in military custody "without trial."  We wrote earlier that the NDAA itself probably doesn't change the government's detention authority under existing law and court decisions (whatever one thinks about that law and those court decisions).  The signing statement, too, doesn't fundamentally change that picture.  In short, the Administrations statement that it won't detain U.S. citizens in military custody "without trial" probably only comports with the requirements in Hamdi v. Rumsfeld, and probably doesn't offer any extra or special protection beyond Hamdi.

As to restrictions, the Administration's signing statement flatly refuses to comply with the requirement for military custody for foreign detainees and the restrictions on transfer of Guantanamo detainees to the U.S. or to other countries.  These restrictions undoubtedly raise separation-of-powers problems, but the signing statement means that the President will ignore the NDAA--the law--in favor of his Administration's own (even if correct) interpretation of the Constitution.  (An alternative would have been the veto.)  This is a practice that this President once disavowed, or at least qualified.  The Administration's signing statement on the NDAA is one of its more aggressive uses of a constitutional signing statement, signalling the Administration's willingness to ignore the law it just signed because it is unconstitutional in some applications.  The Administration is correct that these limitations raise grave separation-of-powers problems, but it's less clear that a signing statement is the best way to deal with them.

Here are some particulars:

• Section 1021.  This section defines a detainable person and apparently authorizes indefinite military detention.  The White House says that this "breaks no new ground," because it simply confirms authorities already recognized by the law and the courts; it also says that it requested "critical limitations" in the bill that say that the authority here doesn't expand or limit existing legal authority.  The signing statement addresses the principal criticism of this section, the potential indefinite detention of American citizens: "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."  This statement doesn't change anything.  In particular, the "without trial" is a reference to Hamdi v. Rumsfeld, which held that the government can't hold U.S. citizens indefinitely without due process.  The key is understanding what the administration means by "without trial."  Whatever it means, it still has to satisfy due process under Hamdi.  In short, the section and the signing statement together don't seem to change existing law.
• Section 1022.  This section mandates military custody for a category of non-citizen detainees and was controversial because it would tie the Commander-in-Chief's hands in choosing how to deal with alleged terrorists--a restriction that the Administration earlier objected to on separation of powers grounds.  The signing statement reiterates the Administration's earlier objections and flatly rejects its limitations.  Here's what the statement says: "I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.  While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.  I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security.  Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirements,including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.  . . . [U]nder no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention."  The Administration's objections here are practical and operational, and their separation-of-powers roots are clear: it's the Commander-in-Chief's job, not Congress's, to determine how to detain foreign alleged terrorists.  Whether the President can lodge this kind of objection in a signing statement (as opposed to a veto), and whether the President can therefore disregard the plain law (that he just signed), are different questions.
• Sections 1027 and 1028.  These are restrictions on the use of funds to transfer Guantanamo detainees to the U.S. or to foreign countries.  The statement reiterates the Administration's earlier separation-of-powers objections and says that "[i]n the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict."

SDS