Calling Obama’s Bluff on His Signing Statement

The ACLU has a fascinating letter to Obama pertaining to his signing statement threat. It basically calls his bluff on his “pretend” problems with Congressional restrictions on his ability to close Gitmo. It does this, first of all, by pointing out that the provisions were part of the National Defense Authorization Act, and therefore limit expenditures by DOD, but not expenditures by DOJ or DHS, which collectively could take on the supposedly prohibited activities.

Contrary to the characterization of the transfer provisions by some media reports and by several members of Congress, the Guantanamo transfer provisions, sections 1032 and 1033 of H.R. 6523, are not complete bans on transfer either to the United States for prosecution in federal criminal court or to foreign countries. Instead, section 1032 (on transfers to the United States) is a funding restriction limited to funds authorized to be appropriated by this particular NDAA, and section 1033 (on transfers to foreign countries) is limited to funds authorized to be appropriated by this particular NDAA or otherwise available to the Department of Defense (“DOD”). At most, the restrictions in the transfer provisions apply only to the expenditure of DOD funds.

Sections 1032 and 1033 do not prohibit the Department of Justice (“DOJ”) from using its own funds to transfer criminal defendants from Guantanamo to federal criminal court in the United States, and do not prohibit the Department of Homeland Security (“DHS”) or State from using their own funds to transfer detainees from Guantanamo for resettlement or repatriation in foreign countries.

The letter goes on to point out the many times Congress has passed legislation that banned all expenditures tied to closing Gitmo. It even notes (addressing one of my concerns) that the House passed, but not the entire Congress, a more substantial ban in one of the versions of the continuing resolution. Congress knows how to ban all expenditures on closing Gitmo, the ACLU notes, but it chose not to do so.

But if Obama interprets the law to limit all expenditures on detainee transfers, the letter continues, then it would be an unconstitutional Bill of Attainder.

As the Supreme Court explained in Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977), the Bill of Attainder Clause in Article I of the Constitution prohibits Congress from passing “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” The three elements of a bill of attainder are “[1] specification of the affected persons, [2] punishment, and [3] lack of a judicial trial.” Selective Serv. Sys. v. Minn. Public Interest Research Group, 468 U.S. 841, 847 (1984). The transfer provisions of H.R. 6523 are unconstitutional because they would meet each requirement.

Now, IANAL, so I await bmaz’ take on this (because he loves to talk about Bills of Attainder). But I’m less convinced by this argument; I’m less convinced this argument would stand up in court.

I also think this part of the argument could be stronger still. Doesn’t Congress, by prohibiting the President from spending any money on Gitmo transfers, consign them to the imperfect justice system there? If so, why not note that?

Moreover, if–as ACLU argues–Congress’ law equates to requiring detainees to stay at Gitmo, and if–as ACLU argues–“the ‘lack of a judicial trial’ element would be met because … fewer than 40 of the detainees will ever be tried for any crime,” then isn’t the ACLU asking Obama to complain about Congress forcing him to indefinitely detain these detainees?

Mind you that argument has one technical problem: that this defense authorization only lasts for one year. So the law only requires Obama to “indefinitely” detain these men for one year.

But then there’s the larger problem. Obama is on the verge of signing an Executive Order implementing an indefinite detention protocol himself. As increasingly incredible as his “pretend” efforts to close Gitmo may be, they’re still far more credible than a complaint from Obama about Congress forcing him to, effectively, do what he’s about to do via EO anyway.

Which is what this letter, at its best, seems to do: force Obama to admit that he’s choosing to abide by this Congressional restriction because it forces him to do what he wants to do anyway.

  1. MadDog says:

    I still wish someone had the nerve to charge these Congresscritters with Obstruction of Justice.

    I guess even the ACLU won’t go there.

  2. bobschacht says:

    Over Christmas-New Year’s, I finished reading The Audacity of Hope. I believe that Obama’s intention is that it applies not only to the 2008 election, but to now, into the future. It is about an *attitude* towards the future, not toward any particular candidate.

    I’d like to use Mary’s Wish List as an example, but I can’t find it. Something wierd has happened to the FDL archives that renders them less useful than before. Well, I quoted/paraphrased her here.

    Here’s where the audacity comes in: We do not give up hoping. Instead of becoming cynical, and giving up, the audacious thing to do is NOT give up. We turn our hopes into goals, missions, etc which we never give up on, even if we think Obama will never do them.

    This is indeed audacious. It is easier to become cynical, and give up, blaming Obama himself for failing to live up to our hopes.

    These struggles are not six month wonders. They carry us into deep waters, and we must be prepared to deal with that.

    Bob in AZ

    • bmaz says:

      What the fuck does Obama think we have been doing all this time?? Corollary to keeping hope and working the long haul and all that rot is that, when opportunities for advancement and betterment are available, they are seized and built upon to the fullest extent possible, because they do not come every day. That is what makes being sold a bill of goods by a neophyte cipher like Obama so disheartening. Obama can take his hopey changey, nothing is my fault crap and shove it.

      • bobschacht says:

        Obama can take his hopey changey, nothing is my fault crap and shove it.

        I don’t think you are understanding what I wrote. He’s not writing about *his* hopey changey. He’s writing about the importance of OUR hopey changey. The audacity is not his– it is ours. But I get that your hostility leaves no room for that.

        You don’t catch the vibe I get from many commenters here at the Wheel House. That vibe is no hope and pure cynicism, and there’s nothing we can do. I don’t think you understood my comment at all. Sorry for expressing myself so poorly.

        I do understand the hard and important work that many here are doing, including yourself. I won’t try to characterize your motivations, but it is my impression that there are important contributors here who have not given up their own hope for change, and are pushing as hard as they can to bring about real change. Their hope is audacious, and I think that is what Obama was pointing towards. This is apart and different from the apathy and cynicism that there is not a damn thing we can do, the fix is in, and that any hope for change by anyone is wasted. Both views are present here.

        Bob in AZ

        • Theater403 says:

          Is the fix not in? This, I have to say, is the real issue. The fix appears to be in at every turn. That is to say, frequently we read of the “kabuki theater” of government (digby uses this all the time) and if government is ONLY theater–or rather if the government we are allowed to see and participate in is ONLY theater then there is every reason to be a cynic. So, why is a Democratic POTUS enacting and strengthening the GOP POTUS? Is there only a kind of contiguity of “play” within the government? So, as I think Chomsky says constantly…there is a blueprint and all parties play their role so that the blueprint is properly made into the edifice of world dominance. But this world dominance has absolutely nothing to do with “citizens”, with the commoners…only with rulers.

          We “eke” out change in terms of social policy and believe we have achieved victories while the elephant in the room is the monstrous action of this government (and other powerful governments) in terms of the world stage.

          “why bother” is a very real question and I have yet to see a real answer that makes sense outside of the “idea” that you have not given up the fight and so absolving your complicity as an agent-bystander.

  3. Mary says:

    Bob – I’m sure I’m one of the people who gives off that vibe of no hope and I wish I didn’t. I do get what you are saying, it’s a “positive energy” aspect – the size of the fight in the dog issue. When you are already hopeless, beaten up on and start out defeated, it almost doesn’t matter what you are fighting for (or giving up over). There’s something about positive energy that attracts an outcome.

    I’d like to have it right now, to be able to say – if not today, then tomorrow. I don’t, but I wish I did.

    more OT – I’m glad someone got around to some Bill of Attainder arguments on this crap. They are long overdue – this may not have been the absolute best setting for the argument, but it’s not all that bad.

  4. MickSteers says:

    It’s hard not to feel a little schizophrenic, lurching between despair and hope as the Democrats routinely screw up the big stuff, but toss beguiling crumbs of progress our way. There doesn’t seem to be a sliver of difference between W. and Obama on substantive issues, so it’s easy to feel like a gullible enabler for falling for the hope and change thing.

    I get the sense that progressives’ hope is just not enough to drive change any more. The change may have to come first, in the form of pain. Some further cataclysm, (economic, geo-political…whatever) will be needed to rouse sufficient populist ire for citizens to break the trans-national plutocrats’ stranglehold on the society.

    If warriors must chain themselves to the castle gates, and the peons are extorted to offer further billions in tribute to the rich to get something as simple as DADT repeal, what do we imagine it will take to do anything real for jobs, the environment or peace?

    In less noble moments, I think the best revenge on the tea partiers would be to give them everything they think they want. But then I remember that they are mostly a reaction to the same political cancer that drives progressives mad. It’s a pity that it is not in the media’s financial interest to permit the partiers and lefties to see how much they really have in common, and who is really responsible for their distress.

    So,like Sisyphus, liberals return to pushing on the rock. It’s not like it’s going to work, but it’s the right thing to do.

  5. JohnLopresti says:

    I think Potus the chief executive has other recourses with gtmo transfers; he also is c-in-c. If the administration*s judgment is it is beneficial to quit the scope and scale of what gtmo became under Yoo Bush, the president has ways to be that sort of a peacemaker, Republican rear-guard action proclivities notwithstanding.