President Barack Obama late Tuesday signed a $633 billion defense bill that continues to block his ability to close the prison camps at Guantánamo, then in a separate signing statement issued Wednesday called the prison camps a waste of national security resources.
"I continue to believe that operating the facility weakens our national security by wasting resources, damaging our relationships with key allies, and strengthening our enemies," Obama said in a statement released by the White House Wednesday morning.
While the president has bristled at the restrictions in past signing statements, this time he highlighted the expense, and it comes immediately after the hot debate over the fiscal cliff.
The White House had threatened to veto the Pentagon's spending bill because of a number of concerns, including limits on his authority to transfer terror suspects from the U.S. military prison at Guantánamo Bay, Cuba. As of Wednesday, the Pentagon held 166 detainees at Guantánamo — at least 55 of whom are cleared for release — but just nine of them on trial or convicted of crimes.
Obama, on vacation in Honolulu, said he signed the bill because of "the need to renew critical defense authorities and funding was too great to ignore."
The 2013 National Defense Authorization Act funds the Pentagon's operating budget, gives troops a 1.7 percent pay raise, authorizes nearly $480 million for U.S.-Israeli missile defense cooperation, and adds up to 1,000 Marines to embassy security detachments around the world. It also authorizes many additional expenditures and forbids others, effectively using the power of the purse to impose policy.
The Obama administration had lobbied Congress to remove the Guantánamo restrictions, at one point threatening a veto, and at another noting the inflated costs of doing business at the remote base.
In a Dec. 11 letter to Congress, Defense Secretary Leon Panetta argued for relief from the restrictions by highlighting the financial costs of the prison camps where 1,700 troops and civilians serve on temporary or contract duties — in a setting where the Pentagon imports everything from food to fuel for electricity to entertainment for both captives and captors. "These sections would preclude moving even convicted war criminals serving life sentences to secure facilities in the United States that would also be economically efficient," Panetta wrote the House Armed Services Committee Chairman, Rep. Buck McKeon, in a letter obtained by The Wall Street Journal.
The Obama administration has estimated the costs of keeping a captive at Guantánamo as topping $800,000 per prisoner per year. A Government Accountability Office study on the possibility of relocating Guantanamo captives to U.S. soil estimated the cost of one year's federal confinement in a maximum security lockup at $34,627.55 a year. It did not predict costs if the military were responsible for Guantánamo captives moved to U.S. facilities.
But the Pentagon spending bill kept two sets of restrictions on the president's powers to close the prison camps, something he had declared by Executive Order on Jan. 22, 2009 would happen in the first year of his first administration:
• One portion forbids the use of federal funds to transfer Guantánamo detainees to U.S. soil for any reason, including a federal criminal trial.
• The other maintains restrictions on executive branch authority to transfer detainees to a foreign country and have all-but frozen transfers from the base. Only those detainees who die in custody or who get court release orders can leave without a Defense Department waiver and certification to Congress.
The last two detainees to leave were a Yemeni man who the military says committed suicide by overdose in a maximum-security lockup and convicted war criminal Omar Khadr to a prison in his native Canada under a diplomatically negotiated plea deal.
Early in Obama's presidency, diplomats negotiated transfer agreement to third countries for resettlement (Germany, Bermuda, El Salvador, Palau are some examples). But the diplomatic talks ground to a halt because of Congress' restrictions on transfers.
The Justice Department has notified the federal court that it has cleared 55 captives for release, many of them Yemenis and Syrians who can't be safely repatriated to their homelands. They have nowhere to go, so they remain in detention because of the restrictions.
Obama's signing statement casts the restrictions as an encroachment on executive powers.
By forbidding federal trials for Guantánamo captives, he said, the law he signed "substitutes the Congress's blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantánamo detainees.
"Removing that tool from the executive branch undermines our national security. Moreover, this provision would, under certain circumstances, violate constitutional separation of powers principles."
And echoing past statements, Obama also left open the possibility that administration attorneys might interpret the restrictions as overreaching and inapplicable.
"My administration will interpret these provisions as consistent with existing and future determinations by the agencies of the executive responsible for detainee transfers," Obama said. "In the event that these statutory restrictions operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict."
Prison camp critics issued statements of disappointment that the president had signed the legislation and in some instances urged him to use his executive powers to ignore the limits.
"The president needs to act now if he's going to close Guantánamo within his second term," said Dixon Osburn of the legal advocacy group Human Rights First. "It's time to put a senior White House official in charge and begin transferring cleared detainees."
A White House pool report from Honolulu said Obama signed the Pentagon spending law personally — unlike the tax bill that averted the U.S. from going over the fiscal cliff, which Obama had signed in Washington with an autopen. Congress delivered the NDAA bill over the weekend, and the traveling White House brought it to Hawaii with Obama.
Carol Rosenberg
Miami Herald