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Obama Looks to Bypass Restrictions on Gitmo Transfers With Executive Powers

Last month, the Democratically controlled Congress voted to place new restrictions on the transfer of detainees from the Guantanamo Bay detention facility in Cuba. But now, Barack Obama's legal advisors are debating whether the president should move forward with plans to prosecute the prisoners in civil courts by issuing a signing statement asserting that his executive powers allow him to bypass Congress' restrictions, the New York Times reports.

If the president issues such a statement, it would represent a "more aggressive use of unilateral executive powers than what he exerted in his first two years in office," the Times notes.

The Congress-approved restrictions include barring the military from using its appropriated funds to pay for detainee transfers to the United States, making it harder for the Obama administration to carry out civil trials and, ultimately, close the detention facility.

According to the Times, Obama could act on the measure by the end of the week.

The deliberations over whether Mr. Obama should challenge those provisions were reported Monday by ProPublica, an investigative journalism site, and were confirmed by several officials familiar with the discussions.

Before the vote on the bill last month, Attorney General Eric H. Holder Jr. told Congress that the restrictions would be “an extreme and risky encroachment on the authority of the executive branch.” But lawmakers included them in the final legislation anyway, and Mr. Obama is considered unlikely to veto the measure because it authorizes billions of dollars for the wars in Afghanistan and Iraq.

One option on the table, according to officials familiar with the deliberations, is for Mr. Obama to sign the bill into law but declare his opposition to the detainee transfer restrictions — which expire Sept. 30, at the end of the current fiscal year — by simply arguing that they are bad policy.

But the administration is also considering whether he should go further by issuing a signing statement — a formal document recording a president’s interpretation of a new law for the rest of the executive branch to follow — asserting that he has the constitutional power to disregard the restrictions.

Under the latter approach, the president would assert that as the head of the executive branch and commander in chief, his prosecutorial discretion and wartime powers would allow him to lawfully bring detainees into the United States for trial or to transfer them to other countries as he sees fit.

Obama's predecessor, former President George W. Bush, also used such signing statements during his tenure in office.  In 2002, the Bush administration declared that Congress has no power to limit the transfer of detainees because "the president has plenary constitutional authority, as commander in chief, to transfer such individuals who are captured and held outside the United States to the control of another country."

Though the memorandum was later rescinded, then-Sen. Obama publicly criticized the Bush administration for extending executive power beyond its constitutional limits.

Other opponents to such actions -- including the American Bar Association -- have argued that president should veto any legislation they view as flawed rather than issuing signing statements which blur the constitutionally mandated separation of powers.

One last thing…
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