Ley Indígena N°19.253

The practice of using signing statements did not end with George W. Bush. The backlash from the signing statement attached to the Detainee Treatment Act was

116 Mayer, Jane. The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, (New York: Double Day, 2008), 51-52.

significant, ultimately resulting in a bill sponsored by then Senator Arlen Spectre to ban the use of signing statements. The bill ultimately would die in committee in two different congressional sessions. The American Bar Association investigated the use of signing statements and issued a finding that the George W. Bush administration’s use of them was a clear abuse of presidential power. It even was raised as an issue in the 2008 election with Obama criticizing their use.

Despite this criticism, the practice continued in the Obama administration. In an example that is particularly pointed, Obama issued a signing statement in response to the

“Ike Skelton National Defense Authorization Act for Fiscal Year 2011.” Of particular interest is a section in the act which prohibited Obama from pursuing a plan to shift the persons detained in Guantanamo to the United States to provide detained persons with a basis to begin legal proceedings to resolve their status. This would both end the need for a detention facility at Guantanamo Bay and the practice of indefinite detention.

To counter this move a Republican-led House of Representatives added an amendment to the National Defense Authorization Act, which is required to fund the military. This amendment prohibited the use of funds for the transfer of persons detained at Guantanamo on or after January 20, 2009, the date that Barack Obama took office. It also prohibited the use of funds to transfer persons who are detained by the United States to their country of origin except where a lengthy list of requirements are met, and

Congress is subsequently provided with a written certification from the Secretary of Defense with concurrence from the Secretary of State 30 days prior to the transfer, essentially making repatriation of detained persons as close to impossible as Congress

could manage. The decision by Congress to prohibit the use of funds is significant, attempting plainly to ban the transfer of detained persons would clearly infringe on the role of the President as Commander in Chief and might be deemed unconstitutional. By prohibiting use of funds, Congress could avoid this problem by using its power to determine appropriations without raising the same constitutional dilemma.

The Obama administration responded by issuing a signing statement that relied on similar justifications to those used by the G.W. Bush administration. What is noteworthy is that although the fundamental argument remains the same, there are subtle shifts in the language used which seem to be responsive to the criticisms leveled at the G.W. Bush administration. The relevant portion of the statement begins by stating:

Section 1032 bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States, and section 1033 bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met. Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security (Para 2).¹¹⁷

The key change in the terms used to describe the power of the executive branch here is telling. Rather than asserting the power of a unitary executive or the power of the

President as Commander in Chief, this statement argues for an equally unclear “executive branch authority.” Indeed, a fair comparison of the signing statements would conclude as

117 Obama, Barack "Statement on Signing the Ike Skelton National Defense Authorization Act for Fiscal Year 2011," January 7, 2011. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=88886.

dubious and readily contestable is the notion of a “unitary executive,” at least as circulated as a more precise notion of what the powers of the office of President are.

Even if that notion grants far more power than would typically be assumed of the branch, at least it has some clarity.

By contrast the language used by the Obama administration is more abstract. The structure of the sentence indicates that the “executive branch authority” is specific to the treatment of detainees, but leaves unanswered the broader question of why the executive branch has that authority rather than the judiciary. There does not appear to be a clear distinction between the way the Obama administration understands the relationship between the branches and the way that relationship was understood by the G.W. Bush administration. This is best evidenced in the second sentence, where the President asserts the right of the executive to determine how to proceed with individual detainees on a case by case basis, reserving for himself the same powers that G.W. Bush had asserted to render an individual decision on the life of persons detained by the military. The

consequence is clear; even when a President seeks to articulate a different policy, relying on the same sources of legitimacy and authority, retains the possibility same abuses in the future.

It is tempting to say that even if Obama claimed the same powers as the G.W.

Bush administration, Obama did so in order to resolve the injustices of that

administration. Such a claim has merit in that at least creating the conditions under which those who have been ill-treated by the government can seek to change the conditions under which they are held moves in the same direction as a more genuine

change. Unfortunately, the justification offered by the Obama administration undermines the notion that the President was willing to surrender control over detained persons and the larger objective of securing the country against external threats. As Obama put it, the use of the Federal courts to prosecute detained persons is “a powerful tool” required to preserve national security. Without it, counterterrorism efforts and national security would be at risk. Although there is no explanation of why this is true, the mention of counterterrorism and national security echoes the already established norms from the G.W. Bush administration. The repeated use of signing statements by the G.W. Bush administration and their continued use by the Obama administration by this point had established that where there was a credible articulation of national security and terror as issues of concern with a policy, the President can override legislative action.

The subsequent paragraph worked in a similar manner. Relying on the already established appeals to national security, President Obama applied a different approach in the second paragraph that fulfilled the same function:

With respect to section 1033, the restrictions on the transfer of detainees to the custody or effective control of foreign countries interfere with the authority of the executive branch to make important and consequential foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur in the context of an ongoing armed conflict. We must have the ability to act swiftly and to have broad flexibility in conducting our negotiations with foreign countries. The executive branch has sought and obtained from countries that are prospective recipients of Guantanamo detainees assurances that they will take or have taken measures reasonably designed to be effective in preventing, or ensuring against, returned detainees taking action to threaten the United States or engage in terrorist activities. Consistent with existing statutes, the executive branch has kept the Congress informed about these assurances and notified the Congress prior to transfers.

Requiring the executive branch to certify to additional conditions would hinder the conduct of delicate negotiations with foreign countries and

therefore the effort to conclude detainee transfers in accord with our national security (para. 3).¹¹⁸

This response adds a wrinkle to the ways that the Obama administration understands the power of the executive branch. Surprisingly, it is not so different from the understanding held by the G.W. Bush administration. In this signing statement the primary justification for retaining control over how detainees are treated, more specifically when and where they can be repatriated, is “flexibility.” Obama is positing the need for the President to have a flexible response to geopolitical problems raised by the practice of indefinite detention.

The reference to flexibility echoes the arguments made under the G.W. Bush administration in favor of a flexible response to the contingencies created by the terror wars. Although the Presidents had very different intentions for how they might use this flexibility, the justification they relied on was the same. Ultimately, the President had to be able to respond to contingency by taking the action deemed most prudent, even if it required a decidedly undemocratic approach. The language used indicates that even if Barack Obama had no investment in unitary executive theory, he believed in one of its core tenets.

The interesting corollary that Obama may be gesturing at is the emphasis on foreign negotiation. Negotiations have historically been one of the areas where Presidents have been given a great deal of discretion. Referencing it in this signing statement asserts an external justification for the flexibility that Obama argues for. The

118 Obama, Barack "Statement on Signing the Ike Skelton National Defense Authorization Act for Fiscal Year 2011," January 7, 2011. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=88886.

signing statement here becomes a means to categorize the actions described in the act as under the prerogative of the executive branch. In other words, rather than simply asserting a broad prerogative under the unitary executive, Obama attempts to draw distinctions and defend particular areas as the domain of the executive branch.

This is also part of a conciliatory gesture. The Obama administration subsequently describes ongoing attempts to keep Congress informed about ongoing activities regarding detainees to discredit the notion that further reporting or permission is required. This move is intended to undermine the public credibility of the requirements outlined in the act. At the same time, it is designed to reassure Congress that the

President is acting in good faith with the interests of Congress. The response by the Obama administration is an attempt to sell Congress not just on good faith in regard to detainees, but also on good faith in the use of broad presidential authority.

For the Obama administration this is a difficult task for two distinct reasons, which are not mutually reinforcing. The first is a lack of popularity with an opposition-led Congress. Republican opposition to the Obama administration for a diverse array of reasons has been extremely well documented. The second is a lack of proximity to the events used to expand presidential authority. Without the urgency felt in the early days of the terror wars, Obama was forced to adopt a more subtle approach to the assertion of presidential powers than his predecessor. The result is the more conciliatory and

amicable language and explanation found in this signing statement.

This signing statement demonstrates many of the same commitments found in those pioneered by the G.W. Bush administration. One could argue that this is a simple

response to the particular circumstances created by the terror wars. Such an argument would make a great deal of sense given the perception within the G.W. Bush

administration that such circumstances as those created by the attacks of September 11, 2001, required an extraordinary response. The problem with such an argument is that it disregards the historical evidence indicating that the use of signing statements are deeply embedded in conservative thought about the role of the presidency. Of importance, the argumentative positions posited in the signing statements went beyond responding to crisis, to assert a constitutional vision of an expanded presidency far beyond the contingent conditions created by the terror wars.

Equally tempting is the argument that Obama departed from this view of the presidency. In some ways this is true; the Obama signing statements tend to be worded in a more amicable manner that fits more closely with earlier signing statements. Yet they relied on much the same justifications as those found in the G.W. Bush signing statements. So long as those justifications are considered to be a legitimate basis for presidential action, the conclusion they provide, that the President has the sole authority to decide the extent of their powers, will remain the same. Although Obama may be given credit for a more restrained use of signing statements, having issued fewer and in some ways less confrontational statements than G.W. Bush, his practices were equally demonstrative of the way signing statements could be used to subvert legislative action.