Among other complications, there was a potential legal obstacle: Congress has imposed statutory restrictions on the transfer of detainees from Guantánamo Bay. The statutes say the secretary of defense must determine that a transfer is in the interest of national security, that steps have been taken to substantially mitigate a future threat by a released detainee, and that the secretary notify Congress 30 days before any transfer of his determination.
In this case, the secretary, Chuck Hagel, acknowledged in a statement that he did not notify Congress ahead of time. When Mr. Obama signed a bill containing the latest version of the transfer restrictions into law, he issued a signing statement claiming that he could lawfully override them under his executive powers.
“The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers,” he wrote in the signing statement, adding that if the restrictions “operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict.”
An administration official said the circumstances of a fast-moving exchange deal made it appropriate to act outside the statutory framework for transfers.
“Acting outside the statutory framework” is their new code for breaking the law.
As for the notion that the signing statement makes this violation of law OK? Flashback to Barack Obama as a candidate in 2008:
“Congress’ job is to pass legislation,” Obama explained. “The president can veto it or he can sign it. But what George Bush has been trying to do as part of his effort to accumulate more power in the presidency. … He’s been saying, well I can basically change what Congress passed by attaching a letter saying ‘I don’t agree with this part or I don’t agree with that part, I’m going to choose to interpret it this way or that way.’”
“That’s not part of his power, but this is part of the whole theory of George Bush that he can make laws as he goes along,” he went on to say. “I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end-run around Congress.”
You just did.
That promise went the way of Obama’s 2009 pledge to reform the VA, and to reject multi-billion dollar helicopters. It is, as the phrase goes, an inoperative statement.
Thanks to Dana.