Is Obama Preparing to Fight the Republicans' Efforts to Handcuff Him on Gitmo?
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Obama administration officials say they plan to reject Congressional efforts to limit the president's options on Guantanamo, setting the stage for a confrontation between the president and the new Congress on an issue that has been politically divisive since Inauguration Day.
The Guantanamo provisions, which include limits on where and how prisoners can be tried, were attached to a spending bill for military pay and benefits approved by Congress late last year. Some Administration officials are recommending that President Obama sign the spending bill and then issue a “signing statement” challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority. Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.
The statement, officials said, would likely be released along with a new executive order that outlined review procedures for some -- but not all -- of the 174 Guantanamo prisoners still held without charge or trial.
Obama has used signing statements in the past, but this one would carry political significance as the first test of his relationship with a Congress in which the House is firmly in Republican control.
Officials said the White House is still weighing how to calibrate the signing statement. A statement rejecting all of the bill's Guantanamo provisions would almost certainly be viewed as provocative by Congressional Republicans and some Democrats. But administration officials view the provisions as clear encroachments on the president's right to prosecutorial discretion and some are pushing for their blanket repudiation.
The reliance on detention orders and a signing statement -- tools used repeatedly by former President Bush, who built Guantanamo nearly a decade ago -- is seen by Obama's advisers as among the few options left for an administration that has watched the steady erosion of its first White House pledge nearly two years ago: to close the prison.
"There is obviously an irony here," said one Obama administration official, "but if we resort to this, it is to close Guantanamo, not keep it open."
While the signing statement and the executive order would leave some room for Obama, they would do little to bring his policy goals to fruition. Over the last two years, Congress and the administration, working separately and in conflict, have woven together a complicated set of categories, policies and restrictions that make it difficult, if not impossible, to close Guantanamo.
What the White House once saw as bipartisan support for shuttering the prison soon became a bipartisan effort to thwart the administration's plans.
The spending measure effectively bars the president from prosecuting any detainees in federal court or conducting military commission trials on U.S. soil. The bill makes it increasingly difficult to transfer detainees to foreign countries, even if the administration deems them safe to release. And it complicates the review process Obama plans in the executive order for nearly 50 detainees the administration has designated as too dangerous to free.
A small circle of policymakers and lawyers from the White House, the Justice Department and State Department spent the closing hours of 2010 considering drafts for a statement. A number of administration officials who discussed the internal deliberations declined to be identified because they were not authorized to speak on this subject.
They said the statement could amount to a presidential intent to disregard some, but not all, of the provisions relating to Guantanamo detainees. Under consideration are claims that the provisions amount to "undue infringement" on the president's authority to exercise prosecutorial discretion, or that they are viewed by the White House as an "unnecessary and unwarranted intrusion," on that power.