White House may challenge bill's Guantanamo provisions

An American flag flies over the prison at Guantanamo Bay, Cuba. The defense spending bill would restrict the transfer of detainees.
An American flag flies over the prison at Guantanamo Bay, Cuba. The defense spending bill would restrict the transfer of detainees. (Bill O'leary)
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By Peter Finn and Anne E. Kornblut
Tuesday, January 4, 2011

The White House may challenge the authority of Congress to bar detainees held at Guantanamo Bay, Cuba, from trial in federal courts in the United States, according to administration officials.

A provision in the defense spending bill, which was passed in December, prevents the administration from transferring any detainee to the United States for any purpose. The bill also prevents the administration from purchasing a state prison in the United States to replace the facility in Cuba, and it places new restrictions on the transfer of detainees who have been cleared for release by an interagency review panel.

White House officials said they are discussing the possible merits of issuing a signing statement when President Obama signs the defense bill, but cautioned that no final decision has been made and that it may not challenge every Guantanamo provision. At a minimum, the statement would assert that Congress has wrongly intruded on the executive branch's discretion to decide on the appropriate venue to prosecute terrorism suspects, officials said.

ProPublica, the nonprofit news organization, first reported that the administration was weighing such a statement, which is a mechanism for the president to comment on legislation or declare that he will not enforce some part of it on constitutional or other grounds, even as he signs it into law.

President George W. Bush, who issued more signing statements than any other president, was criticized by some legal scholars, including current members of the Obama administration, for using signing statements to circumvent the constitutional separation of powers.

The administration has long said that it wants to use a combination of federal courts and military commissions to prosecute some detainees as part of its overall goal of closing the military detention center at Guantanamo Bay.

About 36 of the remaining 174 detainees at Guantanamo Bay have been slated for prosecution, but the administration ran into fierce political opposition from both Democrats and Republicans after it said it wanted to try Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, in U.S. District Court in Manhattan.

A signing statement is likely to spark fresh political conflict with Congress over the future of Guantanamo Bay.

"President Obama is wrong on multiple counts," said Rep. Peter T. King (R-N.Y.), the incoming chairman of the House Homeland Security Committee. "First, after criticizing President Bush so strongly for issuing signing statements, it would be totally hypocritical of him do the same thing when it suits his own ideological purpose. Second, the American people made it clear they don't want Guantanamo detainees in the United States, and they don't want 9/11 trials in the United States."

The administration is also planning to issue an executive order that would formalize indefinite detention without trial for some detainees at the U.S. military prison, but allow those detainees and their lawyers to continue to challenge the basis for continued incarceration on a regular basis.

finnp@washpost.com kornbluta@washpost.com

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