President Obama Signs NDAA With Signing Statement, But It May Be Unconstitutional In “Certain Circumstances.”

November 25th, 2015

On the eve of Thanksgiving–when no one is paying attention–President Obama signed a virtually-identical NDAA that he previously vetoed, that had the same restrictions on transfers from detainees at Guantanamo Bay. His signing statement states that there are “certain circumstances” when the restrictions would be unconstitutional:

Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles.  Additionally, section 1033 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus.  In the event that the restrictions on the transfer of detainees in sections 1031, 1033, and 1034 operate in a manner that violates these constitutional principles, my Administration will implement them in a manner that avoids the constitutional conflict.

The “certain circumstances” rationale has been the self-professed modus operandi of the Obama lawyers. For example, citing a “unique set of circumstances,” the NSC justified the swap for Bowe Bergdahl for five high-value detainees. Rather than adopting a broad Article II theory of executive power–as was de rigueur during the Bush Administration–the Obama lawyers simply say, “Well, Congress can impose limits, but not in this situation.” What’s the difference? The Obama approach purports to establish limits, and identify circumstances that would not justify the executive override.

Is this a distinction without a difference? In a recent post at Just Security, responding to Charlie Savage’s book, Dawn Johnsen (who was nominated, but blocked as OLC head), defends the “circumstances” approach.

To take one prominent example that contrasts sharply with the interrogation memos of the Bush administration’s OLC: In an opinion authored by Barron, OLC meticulously interpreted and respected all potential legal constraints applicable to the proposed targeting of Anwar al-Aulaqi and advised — persuasively, in my view, at least as far as I can tell from the redacted version that is publicly available — that the operation would be lawful under a carefully constrained set of circumstances. Even though that memorandum did not conclusively opine on whether such targeting would be lawful in other circumstances, it strongly pointed toward legal limits. Moreover, Savage reports that administration lawyers later refused to deviate from those implied limits and opined that another American citizen could not be targeted because it appeared feasible that Pakistan might be able to capture him and transfer him to the US for prosecution — which (if Savage’s reporting is correct) is, in fact, what happened.

Does the “circumstances” bulwark work? Dawn’s writes, “Power Wars recounts time after time when Obama administration lawyers worked diligently with other officials to craft lawful, successful policies.” She adds, “Power Wars details the considerable extent to which the Obama administration has restored the rule of law to its traditional role as a constraining force on executive branch action.”

This “circumstances” framework only works so long as the President cares enough to follow the advice of OLC.I think one of the most damaging legacies of the Obama administration was its disregard of the Office designed t0 impose these checks.

Further, often the “circumstances” framework is hard to justify with a straight face. (See my article Gridlock and Executive Power). For example, with the NDAA, the restrictions on the transfer of the detainees were passed in light of the President’s repeated efforts to remove detainees in exchange for Bergdhal. The very “circumstances” Congress legislated against, were the “circumstances” the President found inapplicable. Color me skeptical that this was a meaningful distinction from NSC (not OLC).