A dispatch from the Lawfare North Pole: the White House seems to be using more aggressive language, in opposing Congress’s recent efforts to limit the executive branch’s authority over detainee affairs.
Two days ago, the Administration released a statement on the President’s views regarding H.R. 2055, the Consolidated Appropriations Act of 2012 – also known as the budget bill for the coming year. President Obama has signed the bill, which prohibits him from using appropriated funds for transferring Guantanamo detainees to the United States, and likewise prevents the President from transferring Guantanamo detainees to foreign countries unless certain conditions are satisfied. (The NDAA contains similar provisions, as readers are well aware.)
In this regard, the budget bill reiterates the prevailing rules governing Guantanamo matters: it restates the transfer restrictions embodied in H.R. 6523, the Ike Skelton National Defense Authorization Act for 2011. President Obama signed that statute into law, too, and also issued a statement in connection with its signing almost a year ago. In it, the President said in short that the Skelton bill’s transfer restrictions amounted to bad and even affirmatively dangerous counterterrorism policy. The President also went on to say that the restrictions interfered with the executive's authority over the prosecution and detention of suspected terrorists, and that he would push for Congress to repeal the transfer provisions. But the Administration pointedly declined to say that the restrictions were unconstitutional, or that they might be if they were to be read or applied in one particular way or another. (Here is some commentary on the Administration’s stance on the Skelton bill from Ben and Jack.)
Now, it seems, the President is articulating a possible constitutional objection to the latest restrictions, as enacted recently via the budget bill. This is the pertinent part of the signing statement issued alongside the new statute:
In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal.
Does this mark a change? The text certainly hints in that direction - though, as before, the President stopped short of claiming that the restrictions are unconstitutional. As noted above, the White House refrained from challenging, on constitutional grounds, the Skelton bill’s restrictions on Guantanamo transfers. But now the White House – in view of advice provided by the Department of Justice - seems to think that the budget bill’s essentially identical restrictions could, under some (unidentified) circumstances, “violate constitutional separation of powers principles.” The President also informs Congress and the public that he will “interpret and apply [the newer restriction provisions] in a manner that avoids constitutional conflicts.”
The White House thus gestures towards potential constitutional problems this time around - despite not having done so the first time, and indeed having pointedly refused to do so. Why? As far as transfers are concerned, for what reason would the White House choose not to state possible constitutional objections to the Skelton bill, but then proceed to state - or, at least, more obviously point toward - such objections to the budget bill? There may be one or more answers out there. For the moment, it seems unusual that a restriction would not present constitutional concerns on one day, but then raise those very concerns at a later date.