As part of the Fiscal Year 2013 National Defense Authorization Act (NDAA), Congress has approved provisions that hinder the Executive Branch’s ability to release and transfer detainees from the Parwan Base in Afghanistan. Specifically, Sec. 1025 of the legislation mandates that the Secretary of Defense conduct assessments and provide notification to Congress before transfer or release of third-party nationals captured in Afghanistan.
These assessments — required for each individual leaving U.S. custody — include an examination of a government’s ability to properly try or monitor the released captive, even if the detainee is being remanded to Afghan custody. Meanwhile, Sections 1027 and 1028 ban the use of funds to transfer detainees from Guantanamo Bay prison to the United States for trial and places similar restrictions on the transfer and release of detainees to other countries.
Despite threats to veto the bill, President Obama signed the FY13 NDAA on Wednesday night. In doing so, however, he also issued a “signing statement” delcaring that the Executive Branch believes portions of legislation to be void should it interfere with Constitutional prerogatives of the Executive. In particular, Obama’s signing statement focused on the detainee restrictions of the Act:
Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress. Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities. Under certain circumstances, the section could violate constitutional separation of powers principles. If Section 1025 operates in a manner that violates constitutional separation of powers principles, my Administration will implement it to avoid the constitutional conflict.
While an aide to a senior Senator said the FY2013 NDAA adds no additional requirements on the transfer or release of detainees, Hina Shamsi, Director of the American Civil Liberties Union’s National Security Project agreed that Congress has further tied the Executive’s hands. “It makes it much harder to transfer people out who should be. It is the same problem as with Congress putting restrictions in the way of closing Guantanamo Bay, in that unlawful detention has weakened us from a national security perspective,” she said of the NDAA’s language. Shamsi went on to call the President’s signing statement “anemic,” noting that he should follow-through under whatever discretion he has under the law to “put teeth” into his declaration. The ACLU has long been outspoken against the detention polices of both the Bush and Obama administrations.
Detention policy is returning to the spotlight amid reports that rendition — or the holding of suspected terrorists in third-countries — continues under the Obama administration. Likewise, attempts from the ACLU and New York Times to obtain memos laying out the criteria behind the so-called “kill list” were denied by a District Court judge on Wednesday, drawing renewed attention to the debate between killing and capturing suspected terrorists.