Friday, June 06, 2014

Hey, what about Obama's threat to veto the NDAA if it maintains restrictions on prisoner transfer?

Remember Obama's May 21 threat to veto the National Defense Authorization Act if restrictions on his authority to transfer Guantanamo prisoners are not removed?
The President applauds Ranking Member Adam Smith for his continued stalwart leadership in standing up for our values and national security by advancing the cause of closing the detention facility at Guantanamo Bay. By eliminating unwarranted and burdensome restrictions relating to the transfer of Guantanamo detainees, his amendment would further our efforts to move past this chapter in U.S. history. We urge the House to adopt the Smith Amendment and put an end to the ongoing harm to the nation’s security that results from the operation of the facility at Guantanamo Bay, Cuba.

This Administration has repeatedly objected to statutory restrictions that impede our ability to responsibly close the detention facility and pursue appropriate options for the detainees remaining there, including by determining when and where to prosecute detainees, based on the facts and circumstances of each case and our national security interests. In hundreds of terrorism-related cases – and as illustrated once again this week – our federal courts have proven themselves to be more than capable of administering justice.
Nearly a half billion dollars per year is an unacceptable price to pay for a facility that wastes our resources, creates friction with our allies, and undermines our standing in the world. This needs to be the year Congress lifts the remaining restrictions and enables the closure of the detention facility at Guantanamo Bay. We call on Members of both parties to work together to ensure the United States meets this goal. If this year's Defense Authorization bill continues unwarranted restrictions regarding Guantanamo detainees, the President will veto the bill.
Smith's amendment would appropriate money to build or modify prison facilities in the U.S. and require the president to develop a disposition plan for the remaining detainees.

The firestorm over the swap for Bowe Bendahl has got to have set back the prospects for removing  restrictions on prisoner transfer, let alone fast-tracking Guantanamo closure.  Republicans will howl that they can't trust Obama to dispose of the prisoners without jeopardizing national security (notwithstanding the Bush administration's release of more than 550 prisoners, some of whom have since played active roles in jihadst groups in Syria, Libya and elsewhere).  Democratic support will probably also be crimped, as Democrats have also been distancing themselves from the Bendahl deal. 

As Michael McCauliff noted in his coverage of the May 21 veto threat (first link above), the admnistration has repeatedly threatened to veto NDAAs because of the transfer restrictions, and never followed through, e.g., in January 2013. The NDAA he signed last December did significantly reduce restrictions on releasing prisoners abroad, while maintaining the bar on transferring them to prisons in the U.S. Among the remaining restrictions on overseas transfers is a requirement that the president notify Congress not later than thirty days prior to the transfer -- the provision he ran afoul of in the Bendahl case. He singled out that provision in a statement he issued upon signing the 2014 NDAA, complaining, "Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers."

If past years are a guide, the NDAA will not arrive on Obama's desk until after the 2014 election. It seems unlikely that it will include significant further reductions in the restrictions regarding detainees. Will Obama -- possibly facing a Republican Senate as well as House -- veto an NDAA at last?

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