No veto, Obama signs defense bill with terms

— President Barack Obama set aside his veto threat and signed a defense bill late Wednesday that imposes restrictions on transferring detainees out of military prisons in Afghanistan and Guantanamo Bay, Cuba. But Obama attached a signing statement claiming that he has the constitutional power to override the limits in the law.

Obama’s move awakened a dormant issue from his first term: his broken promise to close the Guantanamo prison. Lawmakers intervened by imposing statutory restrictions on transfers of prisoners to other countries or into the United States, either for continued detention or for prosecution.

Now, as Obama prepares to begin his second term, Congress has tried to further restrict his ability to wind down the detention of terror suspects worldwide, adding new limits in the National Defense Authorization Act of 2013, which lawmakers approved in late December.

The bill extended and strengthened limits on transfers out of Guantanamo to troubled nations such as Yemen, where the bulk of remaining low-level detainees cleared for repatriation are from. It also, for the first time, limited the Pentagon’s ability to transfer the roughly 50 non-Afghan citizens being held at the Parwan prison at Bagram Air Base in Afghanistan at a time when the future of U.S. detention operations there is murky.

Despite his objections, Obama signed the bill, saying its other provisions on military programs were too important to jeopardize. Early Thursday, the White House released the signing statement in which the president challenged several of its provisions.

For example, in addressing the new limits on the Parwan detainees, Obama wrote that the provision “could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities.”

He added that if he decided that the statute was operating “in a manner that violates constitutional separation of powers principles, my administration will implement it to avoid the constitutional conflict” — legalistic language that means interpreting the statute as containing an unwritten exception a president may invoke at his discretion.

Saying that he continued to believe that closing the Guantanamo prison was in the country’s fiscal and national security interests, Obama made a similar challenge to three sections that limit his ability to transfer detainees from Guantanamo, either into the United States for prosecution before a civilian court or for continued detention at another prison, or to the custody of another nation.

It was not clear, however, whether Obama intended to follow through, or whether he was just saber-rattling as a matter of principle. Obama had made a similar challenge a year ago to the Guantanamo transfer restrictions in the 2012 version of the National Defense Authorization Act, but — against the backdrop of the presidential election campaign — he did not invoke the authority he had claimed.

Andrea Prasow, senior counterterrorism counsel and advocate at Human Rights Watch, which supports closing Guantanamo, criticized Obama for not vetoing the legislation despite his threat to do so.

“The administration blames Congress for making it harder to close Guantanamo, yet for a second year President Obama has signed damaging congressional restrictions into law,” she said. “The burden is on Obama to show he is serious about closing the prison.”

Signing statements are official documents issued by a president when he signs bills into law that instruct subordinates in the executive branch about how to implement the new statutes. In recent decades, starting with the Reagan administration, presidents have used the device with far greater frequency than in earlier eras to claim a constitutional right to bypass or override new laws.

The practice peaked under President George W. Bush, who used signing statements to advance sweeping theories of presidential power and challenged nearly 1,200 provisions over eight years — more than twice as many as all previous presidents combined.

The American Bar Association has called upon presidents to stop using signing statements, preferring vetoes of objectionable bills, calling the practice “contrary to the rule of law and our constitutional system of separation of powers.” A year ago, the group sent a letter to Obama restating its objection and urging him to instead veto bills if he thinks sections are unconstitutional.

As a 2008 presidential candidate, then-Sen. Obama criticized Bush’s use of the device as an overreach. Once in office, however, he said that he would use them only to invoke mainstream and widely accepted theories of the constitutional power of the president.

In his latest signing statement, Obama also objected to five provisions in which Congress required consultations and set out criteria over matters involving diplomatic negotiations about such matters as a security agreement with Afghanistan, saying that he would interpret the provisions so as not to inhibit “my constitutional authority to conduct the foreign relations of the United States.”

Obama raised concerns about several whistle-blower provisions that protected from reprisal people who provide certain executive branch information to Congress — including employees of contractors who uncover waste or fraud, and officials raising concerns about the safety and reliability of nuclear stockpiles.

He also took particular objection to a provision that directs the commander of the military’s nuclear weapons to submit a report to Congress “without change” detailing whether any reduction in nuclear weapons proposed by Obama would “create a strategic imbalance or degrade deterrence” relative to Russian stockpiles.

Front Section, Pages 4 on 01/04/2013

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