President Obama, under pressure from supporters and opponents alike, issued a statement late Friday objecting to legislative provisions that severely limit his ability to transfer detainees from Guantanamo, but stopped short of challenging their constitutionality.
Without such an objection, the statement, though strongly worded, amounts to little more than a complaint. Still, it helps the president to avoid a potential fight with a new Congress over Guantanamo.
The provisions were included in a law funding the military through September. Shortly after signing the legislation, the president released a statement saying his administration would “work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”
House Republicans have said they plan to put the restrictions in additional legislation.
The legislation contains provisions that would limit Obama's ability to move Guantanamo detainees to the United States, either for prosecution or for continued imprisonment. It also will make it difficult to transfer detainees to other countries. Congressional Republicans have made a ban on such transfers a goal.
Some of Obama's advisers had pushed for a broad repudiation of the provisions, claiming they constituted undue infringement on the president's right to prosecutorial discretion. But White House lawyers disagreed. Obama could have vetoed the bill, but said he chose to sign it, despite his strong objections, "because of the importance of authorizing appropriations for, among other things, our military activities in 2011."
For supporters of Obama’s pledge to close Guantanamo, this was a moment to watch. His response to the provisions, many argued, would test his commitment to a policy that has come under assault.
If the president accepts the provisions as a total ban on transferring out detainees, "then he is letting Congress roll him on a priority issue," said Chris Anders of the American Civil Liberties Union. "And once you get rolled, you will get rolled over and over again. I think it will make his job extraordinary difficult for the rest of this Congress.”
The ACLU interpreted Obama's statement favorably, but there were critics, too.
David Remes, a Washington lawyer who represents a number of detainees, said, "Obama should have issued no statement rather than this one, which is a confession of impotence" with regards to implementing his policies.
Benjamin Wittes of the Brookings Institution said the statement was so weak that it "borders on the trivial."
"It not only fails to make a constitutional objection, it does not interpret the provision. All it does is complain," he said.
To the president's opponents, any effort to skirt the provisions would likely be seen as provocative.
Kentucky Republican Hal Rogers, the incoming chairman of the House Appropriations Committee, said in a radio interview yesterday that the provisions in the pending defense spending legislation were designed to "prevent any detainee at Guantanamo from being brought to this country for any purpose."
Rogers said the same provision would appear in a continuing resolution or omnibus spending package to fund the rest of the government through 2011. Guantanamo, however, will be fully funded, he said, ensuring that it remains open.
