Obama May Bypass Guantánamo Rules

President Obama is likely to issue a signing statement in order to keep his Gitmo options open.

In an ongoing story, the NYT‘s Charlie Savage reports that President Obama is likely to issue a signing statement in order to keep his Gitmo options open.

President Obama’s legal advisers, confronting the prospect of new restrictions on the transfer of Guantánamo detainees, are debating whether to recommend that he issue a signing statement asserting that his executive powers would allow him to bypass the restrictions, according to several officials.

If Mr. Obama were to issue such a statement, it could represent a more aggressive use of unilateral executive powers than what he exerted in his first two years in office. The issue has arisen as the Republican Party takes control of the House.

Last month, while still under Democratic control, Congress included the detainee transfer restrictions — which would make it harder for the administration to achieve its goal of closing the prison at the military base in Guantánamo Bay, Cuba — in a major defense bill it sent to Mr. Obama. He could act on the measure by the end of the week.

One provision bars the military from using its funds to transfer detainees to the United States, making it harder to prosecute them in federal court. Another prohibits the transfer of detainees to any other country unless the defense secretary, Robert M. Gates, certifies that the country has met a strict set of security conditions.


One option on the table, according to officials familiar with the deliberations, is for Mr. Obama to sign the bill into law but declare his opposition to the detainee transfer restrictions — which expire Sept. 30, at the end of the current fiscal year — by simply arguing that they are bad policy.

But the administration is also considering whether he should go further by issuing a signing statement — a formal document recording a president’s interpretation of a new law for the rest of the executive branch to follow — asserting that he has the constitutional power to disregard the restrictions.

Under the latter approach, the president would assert that as the head of the executive branch and commander in chief, his prosecutorial discretion and wartime powers would allow him to lawfully bring detainees into the United States for trial or to transfer them to other countries as he sees fit.

Either this is a leak by an internal opponent to the policy in an attempt to derail it or, more likely, it’s a trial balloon to test the political fallout.

Interestingly, despite my recollection that Obama vehemently opposed the Bush practice of issuing signing statements during the 2008 campaign, that’s not quite right.  From the February 28, 2008 WaPo:

Asked by my colleague Glenn Kessler whether he would ever consider issuing a signing statement as president, Sen. McCain was emphatic: “Never, never, never, never. If I disagree with a law that passed, I’ll veto it.”


Responding to a questionnaire late last year by the Boston Globe, Sens. Barack Obama (D-Ill.) and Hillary Rodham Clinton (D-N.Y.) made clear their view that Bush has gone too far in issuing signing statements — but that there are circumstances in which such statements are necessary.

“The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation,” Obama answered. But, he added: “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”

On the other hand, my memory that Candidate Obama was adamant about closing Gitmo is correct.  Indeed,  Obama’s first significant act as president was to order a halt to the military tribunals at Gitmo.  But he’s slowly backed away from his promise to close the place down within a year, partly because Congress has put major obstacles in his path and partly because, like his predecessor, he doesn’t know what to do with the detainees.

Outgoing Vice President Cheney’s prediction that Obama wouldn’t give up power has proved prescient:

“Once they get here and they’re faced with the same problems we deal with every day, then they will appreciate some of the things we’ve put in place,” Cheney said during an interview on Rush Limbaugh’s radio show. “We did not exceed our constitutional authority, as some have suggested,” Cheney insisted. “The President believes, I believe very deeply, in a strong executive, and I think that’s essential in this day and age. And I think the Obama administration is not likely to cede that authority back to the Congress. I think they’ll find that given a challenge they face, they’ll need all the authority they can muster.”

And that’s exactly what happened.  Presidential power looks decidedly more desirable when sitting in that big chair in the Oval Office than it does as a United States Senator on the presidential campaign trail.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. And again we have further confirmation that, when it comes to foreign policy at least, we really are living in George W Bush’s third term

  2. steve says:

    Mostly, but Bush would have used signing statements to make sure the prisoners stayed at Gitmo.


  3. narciso says:

    Obama’s promises all have an expiration date, but they all lead to the conclusion, that Gitmo be shut, and the detainees be released, as a default.

  4. James Joyner says:

    @Doug: Yup. My TNI piece by that name is the #1 Google result for “Bush’s Third Term.”

    @steve: Obama’s Gitmo policy differs from Bush only in the optics. Bush had been looking for an exit strategy for quite some time and, indeed, has released most of those deemed releasable. The problem both face(d) is that, once captured and transferred to Gitmo, no good options existed for those too dangerous to release or those not welcome back in their homelands.

  5. Franklin says:

    I’m just impressed that Cheney was right about something. Anything.

  6. William Teach says:

    “partly because, like his predecessor, he doesn’t know what to do with the detainees.”

    Bush was quite content to leave most of them at Gitmo.

  7. Davebo says:

    “The problem both face(d) is that, once captured and transferred to Gitmo, no good options existed for those too dangerous to release”

    Well I don’t think a life sentence with no chance of claiming innocence is a good option. Of course in a sane America the court would step in and put an end to this madness but that ship has long since sailed.

  8. jpe says:

    I think it’s a question of degree (which seemed to be Obama’s position during his campaign). If Cheney’s position was that Obama would maintain some positions taken by Bush, then I think he’s right but uninterestingly so. If his position is that Obama concurs that the President can, say, violate federal criminal statutes (like FISA), then he’s just wrong.

  9. mantis says:

    partly because, like his predecessor, he doesn’t know what to do with the detainees.

    His predecessor knew what to do with them. Dump the problem on the next guy!

  10. PD Shaw says:

    Let’s get the sequence of events straight here.

    Bush relied upon pre 9/11 SCOTUS decisions that Gitmo was not subject to judicial oversight in deciding the safest and best place to keep the detainees and sort out what to do with them.

    The SCOTUS then stopped the trials, stating that they had judicial oversight at Gitmo for purposes of policing the separation of powers and ensuring that the administration followed Congressional laws concerning detention.

    The administration got the legislation to proceed with trials, including barring the courts from pre-decision intervention and then the SCOTUS stopped the trials again, saying we don’t like a couple of things here with the legislation, we may identify other problems later.

    Oh yeah, and the SCOTUS, providing no clear path forward, has ruled that the administration can detain the inmates indefinitely.

    I think it’s pretty clear who the “bad guy” in this is, and it’s neither Obama, nor Bush.

  11. mantis says:

    I think it’s pretty clear who the “bad guy” in this is, and it’s neither Obama, nor Bush.

    Who’s the guy who, instead of dealing with POWs in the traditional fashion, decided to build an extrajudicial prison outside the traditional borders of the US and far from the battlefield, something that to my knowledge our nation has never done (has any?), so that he could detain whomever the executive wanted for any amount of time with zero oversight? He’s the bad guy. Second on the list is the legislature for passing legislation that makes virtually any action impossible, or at the very least ensures a drawn out fight over separation of powers.

  12. steve says:

    @James- Good points. I still sometimes forget that the Bush of 2006-2008 was much different than in the earlier years. Thanks for again reminding me. (I still want to take points off for Bush since he created the mess.)

    “I think it’s pretty clear who the “bad guy” in this is, and it’s neither Obama, nor Bush.”

    They could have treated them as POWs. That would have let them be held indefinitely legally, but it would have meant they could not use torture. They would have had to rely upon proven interrogation techniques with a history of success, instead of more dramatic, but less useful methods. From my POV, Gitmo was an attempt to bypass existing law, not a decision reliant upon previous rulings.


  13. PD Shaw says:

    The POW issue is separate from the Gitmo issue. The purpose of detaining people outside the territory of the United States was to avoid the writ of habeas corpus and rights found to exist in the Fifth or Fourteenth Amendment.

    The courts had previously ruled that the Navy Base was not “territory of the United States” in cases involving Cuban/Haitian refugees detained at Gitmo and thus these rights did not exist. The government didn’t take the position that Gitmo was free from judicial interference because it wanted to torture or abuse refugees, the government under Democratic and Republican administrations didn’t want to be enveloped in years of litigation over what rights refugees acquired by being held at Gitmo, including under what circumstances they can acquire the right to be released into the United States.

    Whatever policy Obama thinks wisest now, he no longer has a free hand.

  14. mike says:

    raise your hand if you are surprised by this – there should be few hands raised.

  15. steve says:

    @PD- Make them POWs and all of that is avoided. You can hold them as long as the conflict lasts.


  16. PD Shaw says:

    SCOTUS has already said they can be held indefinitely regardless of whether he has been given rights required of a POW (Hamdi). That’s one issue the Bush administration was succesful on, which is why it’s easier for Obama to hold these people indefinitely than put them on trial.

  17. Steve Plunk says:

    The President, to his credit, has realized his mouth wrote a check his butt couldn’t cash. We have all done it. They are dangerous and must stay until their terrorist organizations are gone.