Detention: Law of: Legislative Development

The 2013 NDAA Signing Statement: No Better Than the 2012 Version

By Alan Z. Rozenshtein
Friday, January 4, 2013, 4:52 PM

As Ben noted the other day, the Obama administration issued a signing statement on the new NDAA arguing that its Guantánamo detainee-transfer restrictions are unconstitutional as a violation of the separation of powers. The language is similar to last year's signing statement objecting to the 2012 NDAA's transfer restrictions. I published a brief student comment (which is floating around on Lawfare as a reading) in the Harvard Law Review last May, arguing that the signing statement's position was flawed as a matter of law, even if the NDAA restrictions themselves are a total mess:

Although flawed as policy, the NDAA’s detainee-transfer restrictions do not unconstitutionally infringe upon the President’s Commander-in-Chief or foreign affairs powers. Rather, the restrictions are a welcome assertion of Congress’s proper role in regulating wartime detention.

Given that the latest NDAA back-and-forth is essentially a repeat of last year, that conclusion, and the analysis behind it, applies just as well this time around.