President Obama said Friday that congressional restrictions on his ability to transfer Guantanamo Bay detainees for prosecution in federal courts are “a dangerous and unprecedented challenge” to the executive branch and suggested that his administration could yet defy them.
The president issued a “signing statement” when he signed into law a defense spending bill that prevents the administration from using Pentagon funds to transfer detainees to the United States for trial and adds new hurdles to their repatriation or resettlement in third countries.
Obama stopped short of declaring that the Guantanamo provisions were unconstitutional and can be lawfully ignored, a legal maneuver he criticized the Bush administration for employing to disregard parts of laws it disliked.
Instead, the statement said the administration “will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”
Administration officials declined to say what they might do to “mitigate” the effects of the law. They characterized the signing statement as an effort to keep all options open.
Senate Minority Leader Mitch McConnell (R-Ky.) criticized Obama’s statement. “The American people strongly oppose the president’s goal of transferring these terrorists to the United States for trial and detention,” the senator said. “And there is overwhelming bipartisan opposition in the Congress, as evidenced by the legislation the president signed Friday.”
Some human rights groups have suggested that the administration can use funds from other departments, such as Justice or Homeland Security, to bring people into the United States for trial without violating the terms of the law. They note that a complete ban on the use of federal funds, although it was proposed, was stripped from the final version of another funding bill.
“Only Defense Department funds are restricted, and the president could use other funds as he sees fit,” said C. Dixon Osburn, director of the law and security program at Human Rights First. “We agree with the president’s very strong criticism. What Congress has done is close to obstruction of justice.”
There are 173 detainees remaining at the prison at Guantanamo Bay, Cuba. The administration’s efforts to close the military facility have been repeatedly stymied by bipartisan opposition to its plans to move some detainees to the United States for trial and house others in indefinite detention at a new facility.
Any fresh attempt to move detainees into the United States is likely to rekindle the kind of opposition that stopped the plan to try Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, in New York City.