It was a signal promise of President Barack Obama's campaign that he would close Guantanamo during his first year in office — a promise broken due to congressional roadblocks. Obama now has before him a large defense authorization bill that would further tie his hands to transfer the remaining detainees. Rather than veto the legislation that includes funding for the wars in Iraq and Afghanistan, Obama's aides are considering recommending that he issue a signing statement claiming the right to disregard the new limits. That would be a mistake. Guantanamo is a constitutional morass hung around Obama's neck by his predecessor, but the president would only worsen the damage by defying the separation of powers and declaring his intention to ignore sections of law.
The new restrictions that passed on the last day of the lame-duck session would bar the transfer of terror suspects held at Guantanamo to U.S. soil during this fiscal year. The purchase or construction of a facility in the United States into which Guantanamo detainees could be moved would be banned, and Defense Secretary Robert Gates would have to approve any transfer of a Guantanamo detainee to another country.
All this undermines the administration's efforts to prosecute high-level Guantanamo detainees in civilian courts — as opposed to the legally flawed military commissions — and to close the detention camp by moving its prisoners to other nations or the United States. Security concerns are a red herring. Hundreds of convicted terrorists, including the so-called shoe bomber Richard Reid and 9/11 conspirator Zacarias Moussaoui, are serving long sentences here without security problems.
But Congress couldn't resist making political hay out of keeping terror suspects indefinitely locked away in a place that has become an international symbol of America's abuse of Muslim prisoners and abandonment of due process. Obama has called Guantanamo "probably the No. 1 recruitment tool" for terrorist websites.
While the president is right to try to close Guantanamo as quickly as possible, he should not proclaim his power as commander in chief overrides provisions of the bill. The president can veto the entire defense authorization measure but not pick and choose what parts he will abide. That's a violation of the separation of powers, the very sin against the Constitution committed by President George W. Bush again and again. Bush used signing statements to challenge about 1,200 provisions of law over his eight years in office, vastly expanding executive power in dangerous ways. Obama was to set this right, not perpetuate and institutionalize the practice.