Legal Commentary

Obama to Issue Signing Statement on Guantanamo Restrictions in Funding Bill

By Jeralyn

Via Pro Publica: President Obama plans to include a signing statement in the funding bill passed by Congress pertaining to the restrictions on transfers of Guantanamo detainees.

The spending measure effectively bars the president from prosecuting any detainees in federal court or conducting military commission trials on U.S. soil. The bill makes it increasingly difficult to transfer detainees to foreign countries, even if the administration deems them safe to release. And it complicates the review process Obama plans in the executive order for nearly 50 detainees the administration has designated as too dangerous to free.

It's not clear whether his statement will express opposition to all of the provisions, or just some of them. Nor is it clear whether he will merely state his objection to the provisions or assert at least some unconstitutionally infringe on prosecutorial discretion, an executive power. [More...]

48 Guantanamo detainees are in the "indefinite detention" category: Obama has neither cleared them for release nor instituted charges against them. Obama intends to implement a review process for them, but it may be largely cosmetic:

Those detainees would have access to lawyers and could challenge their detention and some of the evidence against them. The order also envisions a review of potential prosecution cases to determine which are still viable and in what setting. But the detainees in that category and those in all other categories have no way to challenge those determinations.

The new review process is unlikely to produce any practical gain for the detainees:

The board could, in theory, approve the release of a detainee at any time. But language in the defense spending bill allows for the direct release of a detainee only through a court order. For all other releases, the administration would need to seek waivers and in some cases, additional certifications, the terms of which would not likely be achievable. As a result, the executive order review would be rendered meaningless for nearly all but a small handful of the detainees.

The reality is there are 174 detainees at Guantanamo, and all have been indefinitely detained.

Full post as published by TalkLeft on January 03, 2011 (boomark / email).