This
afternoon, Obama signed the controversial Defense authorization bill,
despite his reservations about provisions related to the treatment of
terrorism suspects. The National Journal reports:
President
Obama signed on Saturday the defense authorization bill, formally ending
weeks of heated debate in Congress and intense lobbying by the
administration to strip controversial provisions requiring the transfer
of some terror suspects to military custody.
“I have signed
this bill despite having serious reservations with certain provisions
that regulate the detention, interrogation, and prosecution of suspected
terrorists,” Obama said in a statement accompanying his signature.
The
AP has more from the signing statement: “My administration will not
authorize the indefinite military detention without trial of American
citizens. Indeed, I believe that doing so would break with our most
important traditions and values as a nation.”
Full text of the signing statement below:
Statement by the President on H.R. 1540:
Today I have signed into law H.R. 1540, the “National Defense
Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly
because it authorizes funding for the defense of the United States and
its interests abroad, crucial services for service members and their
families, and vital national security programs that must be renewed. In
hundreds of separate sections totaling over 500 pages, the Act also
contains critical Administration initiatives to control the spiraling
health care costs of the Department of Defense (DoD), to develop
counterterrorism initiatives abroad, to build the security capacity of
key partners, to modernize the force, and to boost the efficiency and
effectiveness of military operations worldwide.
The fact that
I support this bill as a whole does not mean I agree with everything in
it. In particular, I have signed this bill despite having serious
reservations with certain provisions that regulate the detention,
interrogation, and prosecution of suspected terrorists. Over the last
several years, my Administration has developed an effective, sustainable
framework for the detention, interrogation and trial of suspected
terrorists that allows us to maximize both our ability to collect
intelligence and to incapacitate dangerous individuals in rapidly
developing situations, and the results we have achieved are undeniable.
Our success against al-Qa’ida and its affiliates and adherents has
derived in significant measure from providing our counterterrorism
professionals with the clarity and flexibility they need to adapt to
changing circumstances and to utilize whichever authorities best protect
the American people, and our accomplishments have respected the values
that make our country an example for the world.
Against that
record of success, some in Congress continue to insist upon restricting
the options available to our counterterrorism professionals and
interfering with the very operations that have kept us safe. My
Administration has consistently opposed such measures. Ultimately, I
decided to sign this bill not only because of the critically important
services it provides for our forces and their families and the national
security programs it authorizes, but also because the Congress revised
provisions that otherwise would have jeopardized the safety, security,
and liberty of the American people. Moving forward, my Administration
will interpret and implement the provisions described below in a manner
that best preserves the flexibility on which our safety depends and
upholds the values on which this country was founded.
Section
1021 affirms the executive branch’s authority to detain persons covered
by the 2001 Authorization for Use of Military Force (AUMF) (Public Law
107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is
unnecessary. The authority it describes was included in the 2001 AUMF,
as recognized by the Supreme Court and confirmed through lower court
decisions since then. Two critical limitations in section 1021 confirm
that it solely codifies established authorities. First, under section
1021(d), the bill does not “limit or expand the authority of the
President or the scope of the Authorization for Use of Military Force.”
Second, under section 1021(e), the bill may not be construed to affect
any “existing law or authorities relating to the detention of United
States citizens, lawful resident aliens of the United States, or any
other persons who are captured or arrested in the United States.” My
Administration strongly supported the inclusion of these limitations in
order to make clear beyond doubt that the legislation does nothing more
than confirm authorities that the Federal courts have recognized as
lawful under the 2001 AUMF. Moreover, I want to clarify that my
Administration will not authorize the indefinite military detention
without trial of American citizens. Indeed, I believe that doing so
would break with our most important traditions and values as a Nation.
My Administration will interpret section 1021 in a manner that ensures
that any detention it authorizes complies with the Constitution, the
laws of war, and all other applicable law.
Section 1022 seeks
to require military custody for a narrow category of non-citizen
detainees who are “captured in the course of hostilities authorized by
the Authorization for Use of Military Force.” This section is
ill-conceived and will do nothing to improve the security of the United
States. The executive branch already has the authority to detain in
military custody those members of al-Qa’ida who are captured in the
course of hostilities authorized by the AUMF, and as Commander in Chief I
have directed the military to do so where appropriate. I reject any
approach that would mandate military custody where law enforcement
provides the best method of incapacitating a terrorist threat. While
section 1022 is unnecessary and has the potential to create uncertainty,
I have signed the bill because I believe that this section can be
interpreted and applied in a manner that avoids undue harm to our
current operations.
I have concluded that section 1022
provides the minimally acceptable amount of flexibility to protect
national security. Specifically, I have signed this bill on the
understanding that section 1022 provides the executive branch with broad
authority to determine how best to implement it, and with the full and
unencumbered ability to waive any military custody requirement,
including the option of waiving appropriate categories of cases when
doing so is in the national security interests of the United States. As
my Administration has made clear, the only responsible way to combat the
threat al-Qa’ida poses is to remain relentlessly practical, guided by
the factual and legal complexities of each case and the relative
strengths and weaknesses of each system. Otherwise, investigations could
be compromised, our authorities to hold dangerous individuals could be
jeopardized, and intelligence could be lost. I will not tolerate that
result, and under no circumstances will my Administration accept or
adhere to a rigid across-the-board requirement for military detention. I
will therefore interpret and implement section 1022 in the manner that
best preserves the same flexible approach that has served us so well for
the past 3 years and that protects the ability of law enforcement
professionals to obtain the evidence and cooperation they need to
protect the Nation.
My Administration will design the
implementation procedures authorized by section 1022(c) to provide the
maximum measure of flexibility and clarity to our counterterrorism
professionals permissible under law. And I will exercise all of my
constitutional authorities as Chief Executive and Commander in Chief if
those procedures fall short, including but not limited to seeking the
revision or repeal of provisions should they prove to be unworkable.
Sections 1023-1025 needlessly interfere with the executive branch’s
processes for reviewing the status of detainees. Going forward,
consistent with congressional intent as detailed in the Conference
Report, my Administration will interpret section 1024 as granting the
Secretary of Defense broad discretion to determine what detainee status
determinations in Afghanistan are subject to the requirements of this
section.
Sections 1026-1028 continue unwise funding
restrictions that curtail options available to the executive branch.
Section 1027 renews the bar against using appropriated funds for fiscal
year 2012 to transfer Guantanamo detainees into the United States for
any purpose. I continue to oppose this provision, which intrudes upon
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. For decades,
Republican and Democratic administrations have successfully prosecuted
hundreds of terrorists in Federal court. Those prosecutions are a
legitimate, effective, and powerful tool in our efforts to protect the
Nation. Removing that tool from the executive branch does not serve our
national security. Moreover, this intrusion would, under certain
circumstances, violate constitutional separation of powers principles.
Section 1028 modifies but fundamentally maintains unwarranted
restrictions on the executive branch’s authority to transfer detainees
to a foreign country. This hinders the executive’s ability to carry out
its military, national security, and foreign relations activities and
like section 1027, would, under certain circumstances, violate
constitutional separation of powers principles. The executive branch
must have the flexibility to act swiftly in conducting negotiations with
foreign countries regarding the circumstances of detainee transfers. In
the event that the statutory restrictions in sections 1027 and 1028
operate in a manner that violates constitutional separation of powers
principles, my Administration will interpret them to avoid the
constitutional conflict.
Section 1029 requires that the
Attorney General consult with the Director of National Intelligence and
Secretary of Defense prior to filing criminal charges against or seeking
an indictment of certain individuals. I sign this based on the
understanding that apart from detainees held by the military outside of
the United States under the 2001 Authorization for Use of Military
Force, the provision applies only to those individuals who have been
determined to be covered persons under section 1022 before the Justice
Department files charges or seeks an indictment. Notwithstanding that
limitation, this provision represents an intrusion into the functions
and prerogatives of the Department of Justice and offends the
longstanding legal tradition that decisions regarding criminal
prosecutions should be vested with the Attorney General free from
outside interference. Moreover, section 1029 could impede flexibility
and hinder exigent operational judgments in a manner that damages our
security. My Administration will interpret and implement section 1029 in
a manner that preserves the operational flexibility of our
counterterrorism and law enforcement professionals, limits delays in the
investigative process, ensures that critical executive branch functions
are not inhibited, and preserves the integrity and independence of the
Department of Justice.
Other provisions in this bill above
could interfere with my constitutional foreign affairs powers. Section
1244 requires the President to submit a report to the Congress 60 days
prior to sharing any U.S. classified ballistic missile defense
information with Russia. Section 1244 further specifies that this report
include a detailed description of the classified information to be
provided. While my Administration intends to keep the Congress fully
informed of the status of U.S. efforts to cooperate with the Russian
Federation on ballistic missile defense, my Administration will also
interpret and implement section 1244 in a manner that does not interfere
with the President’s constitutional authority to conduct foreign
affairs and avoids the undue disclosure of sensitive diplomatic
communications. Other sections pose similar problems. Sections 1231,
1240, 1241, and 1242 could be read to require the disclosure of
sensitive diplomatic communications and national security secrets; and
sections 1235, 1242, and 1245 would interfere with my constitutional
authority to conduct foreign relations by directing the Executive to
take certain positions in negotiations or discussions with foreign
governments. Like section 1244, should any application of these
provisions conflict with my constitutional authorities, I will treat the
provisions as non-binding.
My Administration has worked
tirelessly to reform or remove the provisions described above in order
to facilitate the enactment of this vital legislation, but certain
provisions remain concerning. My Administration will aggressively seek
to mitigate those concerns through the design of implementation
procedures and other authorities available to me as Chief Executive and
Commander in Chief, will oppose any attempt to extend or expand them in
the future, and will seek the repeal of any provisions that undermine
the policies and values that have guided my Administration throughout my
time in office.
BARACK OBAMA
THE WHITE HOUSE, December 31, 2011
