Is Obama Preparing to Fight the Republicans' Efforts to Handcuff Him on Gitmo?
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The bill makes both of those options more difficult and complicates the aims of the executive order.
Under the terms of the order, an administrative board would meet periodically to evaluate detainees case by case. The board could, in theory, approve the release of a detainee at any time. But language in the defense spending bill allows for the direct release of a detainee only through a court order. For all other releases, the administration would need to seek waivers and in some cases, additional certifications, the terms of which would not likely be achievable.
As a result, the executive order review would be rendered meaningless for nearly all but a small handful of the detainees. Some officials said there have been ongoing efforts to redraft elements of the order, alongside the signing statement, to create a process consistent with the spending bill provisions. But it has been a difficult task.
The bill is most at odds with the administration's longstanding intent to prosecute detainees accused of committing crimes. Its provisions prevent any detainees from being transferred to the United States for any reason, language that effectively kills plans for trials on U.S. soil.
It is this provision that first raised the ire of the administration. In a sharply worded letter to Congressional leaders before the bill was passed, Attorney General Eric Holder wrote that limiting the Justice Department's options for federal court prosecutions was "an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects." Holder specifically noted the president's authority to exercise "prosecutorial discretion."
If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.
"The bill," said one administration official, "undermines the principles outlined in the president's archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged."
The bill is also likely to unravel the only working leg of the administration's Guantanamo effort: transfers of some detainees home or to third countries. Mostly with the help of European allies, the State Department has transferred or resettled 66 detainees, roughly one-quarter of the detention facility's population when Obama came into office. That program is still completing transfers or returns for another 30, non-Yemeni detainees.
While the bill does not prevent future transfers outright, it determines that the secretary of defense, and to some extent, the secretary of state, must ensure that any released individual cannot engage in activity harmful to the United States. Administration officials said the wording makes it all but impossible to carry out additional transfers.
A recent U.S. intelligence assessment said that five detainees released during Obama's presidency have engaged in or are suspected of engaging in terrorist or insurgent activity. During the Bush administration, more than 500 prisoners were released and the recent report by the Director of National Intelligence said as many as 150 of those former detainees have engaged in or are suspected of participating in efforts to harm the United States.
Obama has issued a number of signing statements taking issue with more than a dozen legislative provisions and has come under some criticism for it from both Republicans and Democrats. Shortly after he took office, Obama promised to use them with less frequency than former President Bush, noting in a presidential memorandum in March 2009: "I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded."