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The Defense Bill That Obama Just Signed Will Make It Harder to Shut Guantanamo

The US president noted that operating Guantanamo is a huge waste of taxpayer dollars and is inconsistent "with our interests as a nation and undermines our standing in the world."

by Jason Leopold
Nov 26 2015, 11:30am

Photo by Johannes Schmitt-Tegge/EPA

President Barack Obama signed a bipartisan defense authorization bill into law late Wednesday that contains a provision that will hinder his goal of shuttering the Guantanamo Bay detention facility before he leaves office.

The $607 billion legislation, which sets defense policies for the next fiscal year and authorizes military spending, specifically prohibits the administration from using any funds to transfer the remaining 107 Guantanamo detainees to the US for detention or prosecution or to "construct or modify any facility in the United States, its territories, or possessions to house any Guantanamo detainee."

But in a signing statement attached to the bill, known as the National Defense Authorization Act, or NDAA, Obama said certain restrictions pertaining to Guantanamo might be unconstitutional and infringe on his executive authority. (A signing statement is an official pronouncement issued by a president explaining how he interprets legislation. Obama has issued several signing statements related to Guantanamo restrictions in other annual defense spending bills he signed into law.)

"Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles," Obama wrote in the signing statement. "In the event that the restrictions on the transfer of detainees… operate in a manner that violates these constitutional principles, my administration will implement them in a manner that avoids the constitutional conflict … The executive branch must have the flexibility, with regard to the detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy."

Obama again noted that operating Guantanamo is a huge waste of taxpayer dollars and is inconsistent "with our interests as a nation and undermines our standing in the world."

Related: The Paris Attacks Will Really Complicate Obama's Plan to Close Guantanamo

"As I have said before, the continued operation of this facility weakens our national security by draining resources, damaging our relationships with key allies and partners, and emboldening violent extremists," Obama wrote. " It is long past time for the Congress to lift the restrictions it has imposed and to work with my administration to responsibly and safely close the facility, bringing this chapter of our history to a close."

Obama had vetoed a previous version of the NDAA sent to him last month over the Guantanamo restrictions and spending provisions. But Rep. Mac Thornberry, R-Texas, the chairman of the House Armed Services Committee, said on Wednesday that the bill lawmakers sent to the president is virtually identical to the earlier.

"The only difference is this bill authorizes $5 billion less for our military," he said. "Given recent events, we may all wish we had that $5 billion back to help protect the country."

With the NDAA now signed into law, Obama will be hard-pressed to find support from members of Congress for his long-awaited plan, yet to be unveiled, on how he intends to close the prison at Guantanamo, which will celebrate its 14th anniversary in January. 

Watch the VICE News documentary Guantanamo: Blacked Out Bay

At a joint press conference last week in Manila with Canadian Prime Minister Justin Trudeau, Obama likened the fierce opposition to closing Guantanamo among lawmakers to "rhetoric" against resettling Syrian refugees in the US. But he insists he's undeterred.

Obama's signing statement leaves the door open for the president to act unilaterally should Congress continue to rebuff his efforts. While the White House has said it will leave all options on the table, Attorney General Loretta Lynch, said that she is unaware of any effort by Obama to defy Congress and go it alone.

"I believe that it is the view of the department that we will observe the laws as passed by Congress and signed by the president," she said. "Only very rarely do we take the step of finding that an unconstitutional provision was something we could not manage — we would of course seek to work with Congress and the administration to resolve that issue."

Related: On The Line: Simon Ostrovsky and Claire Ward Discuss "Life After Guantanamo"

Additionally, the NDAA contains a so-called "anti-torture provision" that would codify a 2009 executive order issued by Obama immediately after he was sworn in as president that banned waterboarding and other so-called "enhanced interrogation techniques" the CIA subjected detainees to as well as the agency's longterm detention of captives at secret prisons. 

The provision now requires the intelligence community to adhere strictly to the Army Field Manual. The anti-torture legislation was sponsored by Senators Dianne Feinstein and John McCain and comes nearly a year after the Senate Intelligence Committee, then headed by Feinstein, issued a portion of its landmark report about the efficacy of the CIA's torture program.

"The CIA's use of torture after 9/11 not only undermined our core values as a nation, it did not make us safer," Feinstein said in a statement. "It wasted valuable time and money, created rifts with our allies and was used as a recruitment tool by terrorists. Enactment of this legislation ensures the United States will never again violate its laws or moral code by using torture."

Raha Wala, an attorney with Human Rights First, lauded the Feinstein-McCain provision. He called it an "historic victory in the fight to reestablish a durable, bipartisan consensus against torture."

Related: Shaker Aamer, the Last Remaining UK Guantanamo Detainee, Has Been Released

"Torture violated our laws and betrayed our ideals. Now, no amount of loophole lawyering will be able to bring us back to the dark side," Wala said.

But some observers have noted that some of the interrogation techniques authorized in the Army Field Manual rise to the level of torture, a finding that the United Nations also agreed with. Feinstein and McCain's anti-torture provision calls for a review of the methods sanctioned by the Army Field Manual in three years.

The NDAA also mandates that Obama present to Congress a broad strategy for combating the Islamic State. Democrats and Republicans have been sharply critical of his approach in the aftermath of the November 13 terrorist attacks in Paris. 

Follow Jason Leopold on Twitter: @JasonLeopold