Document: FY 18 NDAA President Signing Statement

President Donald Trump has signed the National Defense Authorization Act for fiscal year 2018. Read the conference report here and Lawfare's previous coverage highlighting parts of the bill here. The president's signining statement is below:

Today, I have signed into law H.R. 2810, the “National Defense Authorization Act for Fiscal Year 2018.” This Act authorizes fiscal year 2018 appropriations for critical Department of Defense (DOD) national security programs, provides vital benefits for military personnel and their families, and includes authorities to facilitate ongoing military operations around the globe. I am very appreciative that the Congress has passed this bill to provide the DOD with the resources it needs to support our Armed Forces and keep America safe. I note, however, that the bill includes several provisions that raise constitutional concerns.

Several provisions of the bill, including sections 1046, 1664, 1680, and 1682, purport to restrict the President’s authority to control the personnel and materiel the President believes is necessary or advisable for the successful conduct of military missions. Additionally, section 1601 provides that the Commander of Air Force Space Command, a military officer subordinate to the civilian leadership of the President as the Commander in Chief, the Secretary of Defense, and the Secretary of the Air Force, has “sole authority” over certain matters. While I share the objectives of the Congress with respect to maintaining the strength and security of the United States, my Administration will treat these provisions consistent with the President’s authority as Commander in Chief.

Certain other provisions of the bill, including sections 350, 1011, 1041, 1202, and 1227, purport to require that the Congress receive advance notice before the President directs certain military actions. I reiterate the longstanding understanding of the executive branch that these types of provisions encompass only military actions for which such advance notice is feasible and consistent with the President’s constitutional authority and duty as Commander in Chief to protect the national security of the United States.

Sections 1033 and 1035 restrict transfers of detainees held at the United States Naval Station, Guantanamo Bay. I fully intend to keep open that detention facility and to use it for detention operations. Consistent with the statement I issued in signing H.R. 244, I reiterate the longstanding position of the executive branch that, under certain circumstances, restrictions on the President’s authority to transfer detainees would violate constitutional separation-of-powers principles, including the President’s constitutional authority as Commander in Chief. Additionally, section 1035 could, in some circumstances, interfere with the ability of the United States to transfer a detainee who has been granted a writ of habeas corpus.

I also strongly object to section 1633, which threatens to undermine the effective operation of the Executive Office of the President by making full funding for the White House Communications Agency (WHCA) contingent upon the submission of a report on a national policy for cyberspace, cybersecurity, and cyberwarfare. I take cyber‑related issues very seriously, as demonstrated by Executive Order 13800, which has initiated strategic actions across executive departments and agencies that will improve the Nation’s cyber-related capabilities. Among other things, WHCA plays a critical role in providing secure communications to the President and his staff. The Congress should not hold hostage the President’s ability to communicate in furtherance of the Nation’s security and foreign policy. I look forward to working with the Congress to address, as quickly as possible, this unprecedented and dangerous funding restriction.

Several provisions of the bill, including sections 1069, 1231, 1232, 1239, 1239A, 1258, 1259, 1263, 1271, 1279A, and 1607, could potentially dictate the position of the United States in external military and foreign affairs and, in certain instances, direct the conduct of international diplomacy. My Administration will treat these provisions consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs to determine the terms on which recognition is given to foreign sovereigns and conduct the Nation’s diplomacy.

Section 1244(b) purports to limit certain expenditures unless, under section 1244(c), the President submits to the Congress a plan to impose sanctions — including asset blocking, exclusion from the United States, and procurement bans — on certain persons for failing to comply with the Intermediate-Range Nuclear Forces (INF) Treaty. My Administration will apply these provisions consistent with the President’s constitutional authority to conduct foreign relations, including the President’s authority under Article II, section 3 of the Constitution to “receive Ambassadors and other public Ministers.” Section 1245 purports to direct the United States Government to consider the RS-26 ballistic missile to be a breach of the INF Treaty “for purposes of all policies and decisions,” if the President, with the concurrence of certain other executive branch officials, were to make certain legal and factual determinations. My Administration will apply this provision consistent with the President’s constitutional authority to identify breaches of international agreements by counterparties.

Section 910 purports to elevate the current Deputy Chief Management Officer of the DOD to the position of Chief Management Officer, which would result in an expansion of duties, along with an increase in both responsibility and pay. While my Administration supports the policy of section 910, the provision raises constitutional concerns related to the President’s appointment authority. My Administration will devise a plan to treat this provision in a manner that mitigates the constitutional concerns, while adhering closely to the intent of the Congress.

Section 1097 purports to reauthorize the Office of Special Counsel, including by continuing the existing tenure protections for the Special Counsel. The Special Counsel is a principal officer of the United States who performs executive functions, and has both broad authority and long tenure insulated from the President’s removal authority. I reiterate the longstanding position of the executive branch that such insulation of a principal officer like the Special Counsel raises serious constitutional concerns.

Section 1653 purports to require the Nuclear Weapons Council to make an assessment and provide a report to the congressional defense committees in response to legislative activity by a single house of Congress. To direct the Council’s operations in this manner, the Congress must act in accord with the requirements of bicameralism and presentment prescribed in Article I, section 7 of the Constitution. Accordingly, my Administration will treat section 1653 as non-binding, and I will instruct the Council to take action in response to this provision only as an exercise of inter-branch comity — i.e., only insofar as such action would be practicable and consistent with the Council’s existing legal responsibilities.

Several provisions of the bill, including sections 737, 1097, 1244, 1631, 1632, and 1669, as well as language in the classified annex to the joint explanatory statement of the committee of conference, purport to mandate or regulate the submission to the Congress of information — such as deliberative process and national security information — protected by executive privilege. My Administration will treat these provisions consistent with the President’s constitutional authority to withhold information, the disclosure of which could impair foreign relations, national security, the deliberative processes of the executive branch, or the performance of the President’s constitutional duties. Additionally, I note that conditions in the classified annex to the joint explanatory statement of the committee of conference are not part of the text of the bill and do not carry the force of law.

Several provisions of the bill, including sections 513, 572, 807, 1648, 1676, 1696, 2878, and 3117, purport to require executive branch officials under the President’s supervision to recommend certain legislative measures to the Congress. My Administration will treat those provisions consistent with Article II, section 3 of the Constitution, which provides the President the discretion to recommend to the Congress only “such Measures as he shall judge necessary and expedient.”

DONALD J. TRUMP

THE WHITE HOUSE,
December 12, 2017

The president's speech can be found below. Note: We initially mislabeled this as the signing statement and corrected it Dec. 15.

Thank you very much. Mr. Vice President, Secretary Mattis, General Dunford, senior military leaders, and distinguished guests, thank you all for being here as we prepare to sign something that is extremely important: the National Defense Authorization Act. We're signing it into law.

This historic legislation demonstrates our unwavering commitment to our men and women in uniform -- the greatest fighting force in the history of the world. And we're making it a lot better than even that.

Before we begin, I want to address the terrorist attack that took place yesterday in New York City, and to praise the first responders, local police, and federal law enforcement for their quick action. They did an incredible job.

There have now been two terrorist attacks in New York City in recent weeks carried out by foreign nationals, here on green cards. The first attacker came through the visa lottery and the second through chain migration. We're going to end both of them. The lottery system and chain migration -- we're going to end them fast.

Congress must get involved immediately, and they are involved immediately, and I can tell you we have tremendous support. They will be ended.

These attacks underscore the dangers we face from around the globe. The National Defense Authorization Act could not come at a more opportune or important time. This legislation represents a momentous step toward rebuilding our military and securing the future for our children. I applaud the work of the members of both parties who came together to pass the National Defense Authorization Act, which passed with overwhelming bipartisan support -- something that sounds very nice to my ears.

I especially want to thank Chairman Thornberry, who is here with us today, for his tireless efforts. Fantastic job.

In recent years, our military has undergone a series of deep budget cuts that have severely impacted our readiness, shrunk our capabilities, and placed substantial burdens on our warfighters. And great warfighters they are.

History teaches us that when you weaken your defenses, you invite aggression. The best way to prevent conflict or be -- of any kind -- is to be prepared, and really be prepared. Only when the good are strong will peace prevail.

Today, with the signing of this defense bill, we accelerate the process of fully restoring America's military might. I also want to thank Senator John McCain for the work he's done on this bill. He has fought very, very hard to make it just the way he wants it and that we all want it.

This legislation will enhance our readiness, expand our modernized -- and modernize our forces, and help provide our servicemembers with the tools that they need to fight and to win. We will fight and win. But hopefully, with this, we won't have to fight because people will not be wanting to fight with us.

It authorizes funding for our continued campaign to obliterate ISIS. As you know, we've won in Syria, we've won in Iraq. But they spread to other areas and we're getting them as fast as they spread.

We've had more success with ISIS in the last eight months than the entire previous administration has had during its entire term.

It approves missile defense capabilities as we continue our campaign to create maximum pressure on the vile dictatorship in North Korea. We're working very diligently on that -- building up forces. We'll see how it all turns out. It's a very bad situation -- a situation that should have been handled long ago by other administrations.

It upgrades our Ground Combat Vehicles, allows for the purchase of new Joint Strike Fighter aircraft, and paves the way for beautiful new Virginia-class submarines -- the finest in the world.

Finally, the defense bill authorizes major investments in our military's greatest weapon of all: its warriors. The NDAA increases the size of the American Armed Forces for the first time in seven years, and it provides our military servicemembers with their largest pay increase in eight years.

Now Congress must finish the job by eliminating the defense sequester and passing a clean appropriations bill. I think it's going to happen. We need our military. It's got to be perfecto.

At this time of grave global threats, I urge Democrats in Congress to drop their shutdown threats and descend clean funding and a clean funding bill to my desk that fully funds our great military. Protecting our country should always be a bipartisan issue, just like today's legislation.

We must work across party lines to give our heroic troops the equipment, resources, and support that they have earned a thousand times over. Together, we will send a clear message to our allies and a firm warning to our enemies and adversaries: America is strong, proud, determined, and ready. And I might add, when we're completed -- and it won't be that long -- we will be stronger than ever before -- by a lot.

So thank you to all of our friends in Congress. And we do appreciate the bipartisan support, and we appreciate your hard work on this historic defense authorization.

And thank you, most of all, to our brave warriors for standing watch over our country, our families, and our freedom. Brand-new, beautiful equipment is on its way -- the best you've ever had by far. We make the best in the world, and you're going to have it.

God bless you, God bless our military, and God bless America. Thank you very much. Thank you.

I won't be showing all of this to everybody, believe it or not. That's a lot of pages. That is a lot of pages.