What Will President Obama Do with the Defense Authorization Bill?
President Obama’s options with respect to the GTMO transfer restrictions in the 2011 Defense Authorization bill appear to be as follows: (1) veto the bill; (2) sign the bill but decide to transfer detainees in defiance of the law; (3) sign the bill and transfer detainees using funds not restricted by the law (i.e.
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President Obama’s options with respect to the GTMO transfer restrictions in the 2011 Defense Authorization bill appear to be as follows: (1) veto the bill; (2) sign the bill but decide to transfer detainees in defiance of the law; (3) sign the bill and transfer detainees using funds not restricted by the law (i.e. appropriated moneys from other sources); or (4) sign the bill and follow its strictures on transfer. I don’t think he will do (1) because that would not bring political benefits on balance, and would entail redoing the defense authorization bill in a less friendly Congress. I don’t think he will do (2) because it would cause a damaging political storm and might not be lawful. I don’t think he will do (3) because it will cause a damaging political storm even though it might be lawful. I thus think he will do (4), which is the least politically damaging course. Note that none of these decisions have any necessary connection to a signing statement. But if President Obama chooses option (4), he might well attach a signing statement expressing his policy disagreements with the transfer restrictions.
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
