Obama Signs Bill That May Hinder Guantánamo Closing (original) (raw)

Politics|New Measure to Hinder Closing of Guantánamo

https://www.nytimes.com/2011/01/08/us/politics/08gitmo.html

New Measure to Hinder Closing of Guantánamo

Jan. 7, 2011

WASHINGTON President Obama signed a major defense bill on Friday that includes strict new limits on the government’s ability to transfer detainees out of the prison at Guantánamo Bay, Cuba. He sharply criticized those restrictions, but did not claim that he had the constitutional authority to disregard them.

Before the signing of the bill, Mr. Obama’s aides had deliberated over how he should handle the restrictions, which will make it harder to achieve his goal of closing the prison. He was considered unlikely to veto the bill because it also authorizes billions of dollars for the wars in Afghanistan and Iraq.

Some of his advisers discussed whether to recommend that he issue a signing statement asserting that he could bypass the provisions as unconstitutional usurpations of executive power, as President George W. Bush frequently did.

But Mr. Obama stopped short of making such an assertion, even as he strongly denounced the restrictions. Instead, he said he would ask Congress to repeal the restrictions, seek to “mitigate their effects” and oppose any attempt to extend or expand them after they expired in September, at the end of the current fiscal year.

One provision bars the military from using the money authorized by the act to transfer any Guantánamo detainees into the United States, making it harder to prosecute them in civilian court.

Mr. Obama defended the prosecution of terrorism suspects in federal court as “a powerful tool in our efforts to protect the nation.” He said the restrictive provision “represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests.”

The other disputed provision forbids using military financing to send detainees to the custody or control of a foreign country unless Defense Secretary Robert M. Gates certifies that the country has met a strict set of security conditions.

Mr. Obama said that requiring the executive branch to certify the security conditions, on top of the steps it already took, would “hinder the conduct of delicate negotiations with foreign countries” and “interfere 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.”

The restrictions, which were imposed by Congress while it was still under Democratic control, posed a quandary for members of the Obama administration legal team and outside human rights and legal advocacy groups. Many of them shared the view that the prison should be closed, but had criticized the Bush administration for frequently issuing signing statements asserting a right to bypass laws.

The Constitution Project, a bipartisan legal group, condemned the transfer restrictions and called on lawmakers to repeal them. At the same time, Mason C. Clutter, the counsel for the group’s Rule of Law Program, praised Mr. Obama’s decision not to claim that his executive powers would allow him to bypass them.

“The signing statement would have been a problem if the president said he was going to refuse to follow the law as enacted, but also refused to veto it therefore denying Congress its constitutional option to override the veto,” she said. “We believe the president handled this appropriately.”

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