War on Terror

Obama May Break One Promise to Keep Another

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The New York Times reports that President Obama is considering breaking one campaign promise—that he would eschew extreme claims of executive power—in order to keep another—that he would close the prison at Guantanamo Bay. Instead of vetoing a military spending bill that forbids the use of taxpayer money to transfer prisoners from Guantanamo to the United States for trial, he may issue a signing statement declaring that the restriction unconstitutionally impinges on his authority as head of the executive branch and commander in chief of the armed forces. The Times says it is "unclear whether the administration would actually carry out a detainee transfer despite the restrictions, or whether it would merely assert, as an abstract matter, that Mr. Obama had the authority to do so."

Either way, this plan seems inconsistent with Obama' criticism of his predecessor's claims to sweeping executive powers, which George W. Bush said gave him the authority to ignore laws impeding his war on terrorism. Candidate Obama rejected "the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security." He supported legislation requiring congressional approval to bomb Iran's nuclear facilities, and he said the president is bound by bans on torture and warrantless surveillance, congressional limits on troop deployments, human rights treaties approved by the Senate, and (most directly relevant in this context) statutes governing the detention and trial of suspected terrorists. Furthermore, he strongly criticized Bush's promiscuous use of signing statements:

While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. 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. The fact that President Bush has issued signing statements to challenge over 1100 laws—more than any president in history—is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that….

I reject the use of signing statements to make extreme and implausible claims of presidential authority.

If Obama nevertheless issues a signing statement declaring his authority to move prisoners from Guantanamo to the U.S. despite a law forbidding such transfers, he will have a hard time arguing that he is not trying to "nullify or undermine congressional instructions as enacted into law." He presumably will say that he is trying to "protect a president's constitutional prerogatives," but that is also what Bush said. So it all comes down to whether this is an "extreme and implausible" claim of presidential authority. Since closing Guantanamo is a symbolic move that may not have any real effect on detention policies (particularly in light of the president's assertion that he can keep detainees imprisoned with or without trial, and whether or not they're convicted), I'd rather Obama break that promise than abandon any pretense of executive humility.

NEXT: The Constitution Is Dead

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  1. Bust a deal and face the wheel.

  2. If Congress had passed a law in 1942 and FDR signed it that said “no money shall be spent in pursuit of an invasion of North Africa”, would it have been valid? I think it would have and FDR could not have legally launched Operation Torch. This seems to be the same situation here.

    1. Dear Conservatives:

      The War on Terror is not WWII. Nothing you say will make the two relevantly similar. The only thing that the two have in common is their role as pretexts for Congress and the Prez to arrogate power and money.

      Thank you.

      1. Dear Hugh,

        You are a fucking moron. I am sorry you are not smart enough to understand argument by analogy. In the future we will try to put in pathetically explanations to help you understand what is going on. But we can only go so far.

        Please try harder in the future.

        Thank you.

        1. Actually, John, if there is a reading comprehension fail here, it is once again yours. If you had read my original post, the use of phrases like “is not” and “relevantly similar” would have been clues that I understood your analogy, and that I was calling it out as irrelevant.

          Also, I managed to do so without resorting to name-calling, assmuncher.

          1. Fuck you. You are a fucking moron. I was talking about Congress telling the President he can’t use funds to take an otherwise executive action. I just happened to pick out torch. And you respond with a non responsive smug piece of ad homonym.

            I only started calling names because you deserve it. Prick.

          2. Actually, Hugh, you’re completely wrong.

            I disagree with John on the merits of the discussion, but his analogy is perfectly apt.

            In his Operation Torch analogy, he supplies a clear instance of a use of the commander in chief power [war strategy planning] and argues that the Congress could block that specific use of the power by explicitly denying that application of it funding.

            It doesn’t matter if the two wars are comparable. In fact, John’s analogy is the right way to argue the case, because it takes an instance where the commander in chief powers indisputably apply [Operation Torch] and argues for the primacy of the Congressional power even in that indisputable case. If Congress has the power in the Operation Torch case, it would have the same power in all less clear-cut cases – making the use of this specific analogy more useful than just about any other example John could have used.

  3. What’s great is that he is going to break both promises: Gitmo will stay open, and he will issue a signing statement.

    I find it interesting that Obama seems to be asserting that the President is not bound by restrictions placed by Congress on the expenditure of funds. Seriously, O?

    1. This. Let’s not waste time pretending Obama will keep either promise. This is what will happen.

  4. If Obama nevertheless issues a signing statement declaring his authority to move prisoners from Guantanamo to the U.S. despite a law forbidding such transfers, he will have a hard time arguing that he is not trying to “nullify or undermine congressional instructions as enacted into law.”

    It depends on what the instructions are.

    The Congress can’t use its spending power to try to force the President to act in illegal, unconstitutional ways or in ways that violate ratified treaties to which the US remains a party.

    If the Congress passed an amendment to a spending bill saying that the President could not “use funds” to honor WTO obligations, for example, I don’t think the President would have to obey that. If the Congress passed an amendment saying the President could not “use funds” to conduct investigations into activities classified as war crimes under international treaties to which we are a party, I don’t think the President would have to obey that either.

    If the President is bound by law, treaty, or the Constitution to act in a given manner, if the Congress doesn’t want him to act in that manner they can change the underlying law or amend the Constitution. The spending power is not a proxy for doing these things.

    1. “If the Congress passed an amendment to a spending bill saying that the President could not “use funds” to honor WTO obligations, for example, I don’t think the President would have to obey that.”

      I think he would. Why not? In order to be valid law, treaties not only have to be ratified by the Senate but also have to have enabling legislation. There are lots of treaties out there that have been signed and ratified by the Senate that the government routinely ignores because Congress never passed any enabling legislation.

      Your example of the WTO obligations, would be an example of Congress effectively revoking enabling legislation. The President would be bound by it and the US would not abide by WTO anymore.

      1. But failure to pass enabling legislation would amount to reneging on a ratified treaty by Congress, which would I think be an unconstitutional abrogation of their duty.

        1. Congress has no obligation to abide by treaties. The Constitution trumps any treaty. And the Constitution clearly says you can’t spend money without the approval of Congress. No treaty can ever get around that. Period. And yes, Congress is the sovereignty. It is free to ignore all the treaties it wants.

          1. Uh not really

            Article VI

            “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    2. Or suppose that the US signed a treaty with Canada whereby they provided some service and the US paid them some amount of money, Then the treaty was ratified and Canada gave the service, But the next year’s budget said “no money shall be spent in paying canada for said services”. Do you think the President could pay Canada anyway? Hell no. Article one ?eans what it says; only Congress can spend,

  5. Consider the way in which the spending power is being turned into the Green Lantern ring here.

    Since the current state of constitutional law holds that the President cannot refuse to spend funds that the Congress has authorized, the Congress could pass a law directing the President to spend a given dollar amount on imprisoning journalists – and by Sullum’s argument, the President could not refuse to do so.

    1. Oh, I think the President is always free to refuse to act in unconstitutional ways, Fluffy. The courts would sort it out, and imprisoning journalists would be found unconstitutional.

      But that’s not what this particular exercise is about.

      1. Actually, it is.

        The question at hand is whether the Congress can use appropriations language to force the President to act in illegal or unconstitutional ways.

        That would seem to have to apply equally in both positive and negative cases if it applies at all.

        If I had been elected President, I would find the use of Guantanamo as a detention facility illegal, unconstitutional and in contravention of ratified treaties, and it would therefore be my responsibility to close the facility whether Congress wanted to give me funding to do it or not.

        It would be as if my predecessor had started the program to imprison journalists and Congress passed an amendment telling me I couldn’t spend money to open the cell doors.

        After all, if Congress’ spending power trumps everything else, then Congress could override a SCOTUS ruling on Miranda, for example, by just passing an amendment saying you can’t spend any money on letting any of the impacted prisoners leave their prisons. It would basically be exactly the same thing as the Congress is doing in this case.

        1. The difference you seem to be ignoring is that SCOTUS has tacitly found imprisonment at Gitmo to be constitutional, so long as the military tribunal process yada yada is followed. So a lawsuit against the president for using funds for the prohibited purpose of moving prisoners from Gitmo would not be invalidated by the courts on those grounds.

          Of course, I can’t imagine who would have standing to bring such a suit anyway, so for practical purposes

  6. See, the problem we’ve got here is that the current President of the United States is a pathologically narcissistic, lying sack of shit.

    1. Just the current one? Name me the lase one that wasn’t.

      1. Jimmy Carter was at least mostly honest.

      2. Abe Lincoln was nicknamed “Honest Abe.” If that means anything.

      3. “lase”? I assume you meant “lazy”? Because only a lazy president wouldn’t aspire to being a pathologically narcissistic, lying sack of shit.

        1. I would like to lase Obama. Right in the face.

        2. He meant what he said. He’s talking about the one that had a laser.

          1. I was going to do the “laser” joke, but I thought it was too lazy. How unsurprising that you would go there, though.

            1. I’m not lazy. I’m lasy. I fire laser beams out in all directions.

              1. Is it a chemical laser but in solid, not gaseous, form? Put simply, in deference to you, Warty, it’s like lasing a stick of dynamite. As soon as ProL applies a field, he couples to a state, and is radiatively coupled to the ground state. I figure he can extract at least ten to the twenty-first photons per cubic centimeter which will give one kilojoule per cubic centimeter at 600 nanometers, or, one megajoule per liter.

                1. The applications are endless.

              2. “It’s like lasing a stick of dynamite.”

                1. “Your mom puts license plates on your underwear?”

      4. George Washington?

    2. Speaking of which, where did President Bush has issued signing statements to challenge over 1100 laws come from? Here’s a list of Bush signing statements; I count about 160 – and at least a few of those are stuff like “thanks to Senator Soandso for writing this important thing” and “here’s the UN dues I said we’d start paying, sorry about the delay”. Does anybody know where the 1100 figure comes from?

  7. So is this a case of he was against Gitmo before he was for it, after which he was against it again?

  8. It’s easy for Obama to legally Gitmo.
    BHO: “Because Cuba is a sovereign, independent nation, US jurisdiction does not apply there. We cannot maintain a base or a prison there without their consent. Cuba, can we keep Gitmo open?”
    CUBA: “No.”
    BHO: “Ok, well I guess we better pull out of there then.”

    1. Except for the pesky treaty and lease thing.

      1. Actually Cuba hasn’t collected any money on the lease since Castro took power; they refuse to cash the checks because they consider the lease to have been made when Cuba was not really sovereign (and to be honest they have a point there).

    2. I don’t think he promised to close the base, just the prison camp. Closing the base would be a seriously bad idea.

  9. “Instead of vetoing a military spending bill that forbids the use of taxpayer money to transfer prisoners from Guantanamo to the United States for trial, he may issue a signing statement declaring that the restriction unconstitutionally impinges on his authority as head of the executive branch and commander in chief of the armed forces.”

    Out of curiosity, is there anything short of a treaty that, by his argument, doesn’t infringe on his authority as commander in chief?

    1. When has a president said he didn’t have the power to do something in the last twenty years?

  10. Just give each them a parachute and airdrop them back into whatever third world turd hole we snatched them out of.

  11. “…this plan seems inconsistent with Obama’ criticism of his predecessor…”

    I never expected that from him…again.

  12. signing statements are just chickenshit cover my ass scribblings. If you really mean it, use your Veto pen.

  13. If the President is bound by law, treaty, or the Constitution to act in a given manner, if the Congress doesn’t want him to act in that manner they can change the underlying law or amend the Constitution.

    Too complicated, too hard.

    That might impede campaigning and fundraising.

    1. And if he is not so bound, then Congress can attach restrictions to the funds they appropriate.

      He is not bound to try the Gitmoistas in the US. Ergo, Congress can prohibit him from spending funds to do so.

      His only argument is a sort of unitary executive thing; that this falls under his warfighting powers, and Congress can’t restrict those.

      1. Sure he is.

        There are laws on the books against conspiring to murder US citizens.

        Our assertion is that the men in question broke those laws.

        Therefore, the President’s oath of office binds him to try those men for their crimes.

        The only way for Congress to trump that, in my view, would be to repeal the federal conspiracy statutes. As long as they leave the law on the books and appropriate money for federal law enforcement and courts of any kind, it’s the President’s constitutional and legal duty to attempt to enforce those laws by bringing those accused of breaking them to trial.

        1. Ever heard of prosecutorial discretion?

  14. Can we kindly drop the pretense that Obama ever intends to meaningfully change US detention policy, or that he believes that there are limits to executive power?

  15. Masks are funny things; if you wear them long enough, they become impossible to remove.

  16. If we haven’t manufactured the evidence to convict these detainees by now…

  17. The proper thing to do in this case is to veto the bill. Of course, that brings up a bunch of new problems, especially if Congress refuses to pass a new military spending bill without these provisions.

    1. Darn. I guess we’d have to bring the troops home from Afghanistan and Iraq, then.

  18. Of course, the way things work now, the Congress passes a title page, and turns it over to the Executive to fill in the blanks.

    It’s pretty hard for the Congress to come back and say, “Hey, you can’t do that!” when the original law says, “The President is hereby directed to spend a bunch of money on some stuff.”

  19. Obama had 2 years with the Democrats in charge of both the Senate and the House of Representatives. He didn’t close Gitmo during that time. I doubt he would consider closing now if the Republicans didn’t win control of the House of Representatives. He’s desperate to start a fight and attract civil Libertarians to his side.

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