What Will President Obama Do with the Defense Authorization Bill?

By Jack Goldsmith
Friday, January 7, 2011, 12:30 PM

President Obama’s options with respect to the GTMO transfer restrictions in the 2011 Defense Authorization bill appear to be as follows: (1) veto the bill; (2) sign the bill but decide to transfer detainees in defiance of the law; (3) sign the bill and transfer detainees using funds not restricted by the law (i.e. appropriated moneys from other sources); or (4) sign the bill and follow its strictures on transfer.  I don’t think he will do (1) because that would not bring political benefits on balance, and would entail redoing the defense authorization bill in a less friendly Congress.  I don’t think he will do (2) because it would cause a damaging political storm and might not be lawful.  I don’t think he will do (3) because it will cause a damaging political storm even though it might be lawful.  I thus think he will do (4), which is the least politically damaging course.  Note that none of these decisions have any necessary connection to a signing statement.  But if President Obama chooses option (4), he might well attach a signing statement expressing his policy disagreements with the transfer restrictions.