A Signing Statement to Protect Presidential Powers Obama Won’t Commit to Use
That’s the short version of this Dafna Linzer story on Obama Administration plans to combat Congressional efforts to keep Gitmo open forever. Obama will include a signing statement with the appropriations bill asserting that limits on what he can do with Gitmo are unconstitutional [see update below].
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.
[snip]
White House aides 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.
[snip]
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.” [my emphasis]
Note, this unnamed administration official used that word, “pretend,” not me.
But, Linzer goes on, the Administration has not yet decided whether Obama will use these powers he is trying to protect.
The White House has, until now, balked at confrontation even as it watched its policy options dwindle. Not one administration official who spoke about the internal deliberations could say for sure whether the White House, in moving to protect the right to prosecute detainees in federal court, would in fact use it.
“All presidents want to preserve maneuverability and authority, that is natural,” said Elisa Massimino, president of the civil rights organization Human Rights First. “But President Obama has had the authority to move prisoners to the United States, he’s done the background work to identify people to bring to justice and he’s squandered the opportunities to exercise that authority. It is striking to now see a fiercer desire to preserve authority than to use it,” she said. [my emphasis]
Apparently, I guess, Obama’s just going to fight Congress on this to protect presidential power for Dick Cheney to use in a future Republican administration, not to use himself.
Now, aside from my concerns about the separation of powers on this move, I’m amused by the centrality of prosecutorial discretion in it.
After all, the whole point of guarding the executive branch’s prosecutorial discretion is to shield it from the whims of politics, to ensure the integrity of prosecutorial decision making.
But Obama threw that integrity out the window when he allowed his Chief of Staff to override the Attorney General’s authority on Gitmo generally and the location of the 9/11 trial specifically. So Obama’s going to argue he needs to protect prosecutorial discretion, but it’s a prosecutorial discretion already tainted by White House interference.
Which means this plan–to use a signing statement to demand prosecutorial independence–amounts to Obama stating that only he (well, and his former Chief of Staff Rahm Emanuel), not Congress, gets to interfere politically with prosecutorial decision-making.
Update: As MadDog notes, Linzer has updated her piece to note that the signing statement may make no constitutional complaint, but simply note Obama’s opposition to that part of the law.
Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality.
I guess that would serve the purpose of “pretending” to want to close Gitmo without having to try too hard.
Sounds like a line-item veto.
Dafna has updated the story to include:
Which is:
And finally, I found this next paragraph on the new Indefinite Detention Executive Order of interest as well since it is the dual point of the article:
I like to keep in mind that every single day the rest of us are going on and on about the politics and circus of this horrible travesty, there’s some poor human being sitting in a cell, incommunicado, with no hope for release, who has every reason to believe that they’ll just die and rot in that place. No charges, no evidence, just a bunch of bullshit political posturing and a complete lack of accountability.
It’s the truest testament to what the United States is today. Full stop.
Imagine that! No low-level administration officials would commit to Obama defying Congress. Truly, truly surprising.
Let me get this straight. An illegal detention camp was established by the Bush administration so they could torture people outside the jurisdiction of any court system in the world (or so their hack lawyers told them). President Bush later realized that the bad publicity was leading to world hatred of the USA and negative consequences for our national security, and said he wanted to close the place down. Candidate Barack Obama said the same thing, in a rare instance of bipartisan sanity. President Obama could have issued an order on January 20, 2009 to take all the detainees to the U.S. (for example, Leavenworth) but he didn’t. Right-wingers in Congress started demagoguing the issue, saying that Obama wanted to release terrorists in people’s back yards – presumably not for the purpose of mowing lawns. The Obama administration froze in fear, along with many Democrats, and decided not only to keep Bush’s camp open but to institutionalize indefinite preventive detention of people without charges. Now there is bipartisanship in support of illegal detention.
Same as it ever was. Every time a Republican utters the magic phrase “weak on national security,” Beltway Democrats go into the fetal position.
Per the update EW:
My reading of this anonymous quote also reflects that this thinking comes from the “political” side of the White House as opposed to the “legal” sides from either the DOJ, State, DOD, or even the White House Counsel’s Office.
My take is that this reflects the Obama 2012 Campaign crew (Axelrod, Gibbs, Jarret, etc.) and their take on polling. They will only choose to fight for things when the polls go their way.
Indefinite Detention polls well. Or put another way, fighting for trials, even Military Commission trials, does not poll well.
Now many at FDL would ask: How can that be? How can Indefinite Detention poll well? It is an anathema to Progressives!
The answer is in the eyes of the poll readers. The Obama 2012 Campaign crew is not interested in whether something polls well with Progressives.
Even if something polls well with 51% of the public, that is not granular enough for the Obama 2012 Campaign crew.
Instead, the Obama 2012 Campaign crew is interested in whether something polls well with their chosen target audience. And that target audience is not Progressives, but instead Independents and, disappearing though they may be, Moderate Republicans.
And Indefinite Detention pleases Independents and Republicans.
The Obama 2012 Campaign crew has chosen to assume the 2012 election votes of Democrats (including Progressives), and to target the Obama 2012 campaign efforts at the margins.
Therefore it is likely that we will see little or no energy spent on fighting for Progressive issues for the next 2 years, but instead see the Obama 2012 Campaign crew acquiesce in supporting Independent and “relatively” Moderate Republican issues.
The Obama 2012 Campaign crew will “fight” only for those things over the next 2 years that reward them according to their granular reading of the polls.
Um, what the fuck is the basis for the objection if it is not constitutionality??? These people are insipid cowards. Bottom line is Obama should have threatened veto and carried veto out if necessary to protect separation of powers. All he accomplished by selling out the separation of powers and supplication of real executive branch power that actually ought to be protected (as opposed to extrajudicial execution power) was a couple of extra months before the GOP bent him over or shut down the government. Hardly worth it.
You know that I agree with you on this as a principle and would cheer if they’d actually do so, but my ever-buzzing political antennae tells me these folks aren’t thinking about “right or wrong” or even “constitutional vs unconstitutional”.
Instead they are thinking ballot box and electoral vote math, and that we’ll likely only see more of the same for the next 2 years.
Move to the left? Not fookin’ likely! Please the margins even if it means adopting Repug positions? You fookin’ bet!
It’s all about 2012 vote-counting.
They ought to be looking to their left hten, because most (if not all) of the ‘moderate Republicans’ are in the Democratic party, voting for them already, and a lot of them are in the political organization.
[Read, if you wish, ‘f*cking it up’ as the end of that sentence.]
EW, Even Spencer is saying “Don’t Sign It”…
Why does Spencer miss Marcy and FDL? Sumthin happen I ain’t know’d about?
Details here: A Bittersweet Goodbye Post
What’s the problem?
Former president George W. Bush had to get taxpayer money from Congress to build and maintain Gitmo. Funding came from somewhere, didn’t it? Secret Pentagon slush fund? Congress?
IOW, it seems to me that it should be relatively easy for President Obama to shut down Gitmo. Once closed and evacuated, no more money would be necessary to keep it operating, the exact opposite of Bush opening it. And the current “operating budget” could go to shutting it down and transferring everyone (inmates and guards) elsewhere, which President Obama, as Commander-in-Chief, could do “unilaterally” without consulting Congress, couldn’t he? Unless, of course, Republicans wrote into Gitmo appropriations that the president, whomever this might be, even though Commander-in-Chief, cannot close Gitmo…ever…unless Congress approves beforehand.
And yet, Congress controls the “power of the purse,” controlling what is spent and where, but a president is Commander-in-Chief, in civilian charge of our armed forces, but not the funding. Is this the constitutional sticky wicket?
I had similar thoughts though perhaps more forceful last month when this Congressional BS surfaced (i.e. arrest those Congresscritters who voted for this on Obstruction of Justice charges)
Of course the President could do what you suggest. But this is yet another area where he is trying to have it both ways: he wants the latitude to be able to continue to move Gitmo detainees into the regular U.S. prison system, and to be able to try some of them in U.S. courts, but at the same time is unwilling to take on the political risk of a more principled stance of vetoing Congress’ attempts to do either of those things on the ground that it violates separation of powers.
Why is it not surprising to see whether or not the Obama administration will claim that the US Government still retains the right to prosecute a suspected terrorist in US Federal court rooms? This is regrettable and telling.
A Cheney administration. Just what I needed to read before going to bed. Now I’m gonna have to read something soothing, like Ted Bundy’s bio, to soothe me.
After all, the whole point of guarding the executive branch’s prosecutorial discretion is to shield it from the whims of politics, to ensure the integrity of prosecutorial decision making.
But Obama threw that integrity out the window when he allowed his Chief of Staff to override the Attorney General’s authority on Gitmo generally and the location of the 9/11 trial specifically. So Obama’s going to argue he needs to protect prosecutorial discretion, but it’s a prosecutorial discretion already tainted by White House interference.
Hogwash. It’s either a separation of powers issue or it isn’t. That nor the question of prosecutorial discretion are ever “tainted” in any given Administration by its actions in a way where their Constitutional prerogatives are lifted. It’s not a question of how you feel about this particular Administration’s protection, or, as you (and maybe even I!) see it, undermining of prosecutorial discretion. What garbage!
I’m with bmaz. If they view this as a violation of separation of powers, they should veto the law and make clear what language they see the Constitution to allow if Congress wants to treat this area of Executive operations. At the least, if they have this view and consider the authorization to important to endanger, they should sign the law and be n court that same day to get that part of the law invalidated. Of course, they’re not that committed to the question, but if they were, it would probably be wise to indeed issue a signing statement making clear their view of the language in question, so in that sense the idea is potentially justified. But only in a context in which they are actually going to push the issue of Congress’ authority to restrict the Executive’s options on prosecution and jailing.
WRT the question of going the constitutional objection route or not, I think you need to go back to this:
Pretend.
They don’t need to challenge it constitutionally to pretend they’re still serious about Gitmo. And by doing it that way they won’t accidentally give themselves the authority to do so.
If we want real leadership, we need someone who is willing to stand up and do what is necessary to 1) process all of our detainees within the rule of law, 2) close Gitmo any other illegal detention centers, and 3) accept accountability if doing of this requires acting against the law because current constructs don’t allow for this to happen legally.
Then, we need to prosecute any law-breaking done by that and any previous presidents. Only then can we get to rule of law and a model of what true leadership looks like: risking oneself if you really think something is right.