On Wednesday, November 25th, President Barack Obama signed the 2016 National Defense Authorization Act into law.
In addition to the added and renewed restrictions (sections 1031 and 1032) on the president's ability to transfer detainees from Guantanamo Bay to the United States for continued detention, the bill includes two provisions limiting the interrogation activities of agents of the U.S. government.
Section 1045(a) limits interrogation techniques to those outlined in the Army Field Manual, and implements a review of that manual every three years, requiring that it be revised to ensure that it "complies with the legal obligations of the United States." Section 1045(b) requires that the International Committee of the Red Cross be notified of and provided prompt access to "any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, contractors subcontractor, or other agent of the United States Government or detained within a facility owned, operated, or effectively controlled by a department, agency, contractor, or subcontractors of the United States Government, consistend with Department of Defense regulations and policies." These two provisions were previously enacted under Executive Order 13491, "Ensuring Lawful Interrogations," which Obama signed on January 22nd, 2009.
Hat-tip to Marty Lederman of Just Security who so effectively flagged these provisions last week.
Upon signing the NDAA, the White House released the following signing statement:
Today I have signed into law S. 1356, the "National Defense Authorization Act for Fiscal Year 2016." I vetoed an earlier version of this legislation that failed to authorize funding for our national defense in a fiscally responsible manner. As I noted at the time, my first and most important responsibility, as President and Commander in Chief, is keeping the American people safe. The bill that the Congress originally presented to me was not acceptable. In addition to authorizing inadequate funding for our military, it would have prevented a range of necessary military reforms. It included language that would reenact, and in some cases expand, restrictions concerning the detention facility at Guantanamo Bay that I have repeatedly argued are counterproductive in the fight against terrorism.
Following my veto of the previous bill, the Congress approved ‑‑ and I have signed into law ‑‑ the "Bipartisan Budget Act of 2015," which revises discretionary spending caps for fiscal years 2016 and 2017 by providing significant relief from sequestration for both defense and non-defense priorities. The agreement in place helps ensure that relief from sequestration is paid for in a balanced way. The Congress has now revised the National Defense Authorization Act to incorporate these new funding changes and has altered the funding authorization provisions to which I objected. I am therefore signing this annual defense authorization legislation because it includes vital benefits for military personnel and their families, authorities to facilitate ongoing operations around the globe, and important reforms to the military retirement system, as well as partial reforms to other military compensation programs. It also codifies key interrogation-related reforms from Executive Order 13491, which I strongly support.
I am, however, deeply disappointed that the Congress has again failed to take productive action toward closing the detention facility at Guantanamo. Maintaining this site, year after year, is not consistent with our interests as a Nation and undermines our standing in the world. As I have said before, the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists. It is imperative that we take responsible steps to reduce the population at this facility to the greatest extent possible and close the facility. The population once held at Guantanamo has now been reduced by over 85 percent. Over the past 24 months alone, we have transferred 57 detainees, and our efforts to transfer additional detainees continue. It is long past time for the Congress to lift the restrictions it has imposed and to work with my Administration to responsibly and safely close the facility, bringing this chapter of our history to a close.
The restrictions contained in this bill concerning the detention facility at Guantanamo are, as I have said in the past, unwarranted and counterproductive. Rather than taking steps to close the facility, this bill aims to extend its operation. Section 1032 renews the bar against using appropriated funds to construct or modify any facility in the United States, its territories, or possessions to house any Guantanamo detainee in the custody or under the control of the Department of Defense unless authorized by the Congress. Section 1031 also renews the bar against using appropriated funds to transfer Guantanamo detainees into the United States for any purpose. Sections 1033 and 1034 impose additional restrictions on foreign transfers of detainees ‑‑ in some cases purporting to bar such transfers entirely. As I have said repeatedly, the executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy.
Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles. Additionally, section 1033 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus. In the event that the restrictions on the transfer of detainees in sections 1031, 1033, and 1034 operate in a manner that violates these constitutional principles, my Administration will implement them in a manner that avoids the constitutional conflict.
Finally, I am also disappointed that the Congress failed to enact meaningful reforms to divest unneeded force structure, reduce wasteful overhead, and modernize military healthcare. These reforms are essential to maintaining a strong national defense over the long term. My Administration looks forward to continuing its work with the Congress on these important issues.