President Barack Obama's decision to release five Guantanamo Bay Prison detainees in exchange for the Taliban-held soldier Bowe Bergdahl without giving Congress advance notice is stirring criticism about a signing statement Obama made back in December -- and about a promise from his 2007 campaign to limit use of such statements.
Signing statements are appended to bills the president signs. They cite reservations or clarifications about how the president plans to enforce -- or disregard -- certain provisions.
As a candidate, Obama pledged to limit his signing statements to certain circumstances. "While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability," Obama pledged during a 2007 interview with the Boston Globe. "I will not use signing statements to nullify or undermine congressional instructions as enacted into law."
Obama's comments came on the heels of discussion about large numbers of signing statements issued by President George W. Bush. Bush authored more than 150 signing statements throughout his time in office, more than five times the number Obama has issued during his six years in office so far.
The last time we checked on this promise, almost three years ago, we rated it a Compromise, noting some actions by Obama that seemed to comport with the promise and others that didn't. We wondered whether this more recent signing statement was sufficiently contradictory to justify a Promise Broken.
The signing statement that set the stage for the Bergdahl release was attached to the fiscal year 2014 National Defense Authorization Act. It put statutory restrictions on the transfer of Guantanamo detainees, notably a provision that requires the administration to inform appropriate members of Congress at least 30 days before the prisoners are moved.
This became relevant when Obama ordered the release of five Guantanamo detainees in exchange for Bergdahl, who had been held by the Taliban in Afghanistan as a prisoner of war for five years. The five were Abdul Haq Wasiq, Mullah Norullah Noori, Mullah Mohammad Fazl, Mullah Khairullah Khairkhwa, and Mohammad Nabi Omari, and prior to their release, officials at Guantanamo had labeled all five of "high" risk to the United States and were recommended for "continued detention."
Members of Congress were not aware of the trade until after it happened, which, on its face, was a violation of the provision in the 2014 defense law. But Obama had telegraphed the possibility of such an action in his signing statement.
In his signing statement, Obama said plainly that he would disregard the statutory restrictions on the transfer of Guantanamo detainees in certain circumstances:
"Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers....
"In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict."
Obama also wrote a similar signing statement for the fiscal year 2013 defense authorization act.
In his campaign promise, Obama was careful not to say that he would never use signing statements. Rather, he said the statements would be justified if they were used to "clarify … ambiguous provisions of statutes" and not justified if they were used to "nullify or undermine congressional instructions as enacted into law."
On the one hand, Obama did cite a "constitutional conflict" between the congressional and executive branches on carrying out foreign policy. This could be used to argue that his signing statement was in line with his promise.
Indeed, the White House made this point when PolitiFact inquired for this article.
In such "unique circumstances," said National Security Council spokeswoman Caitlin Hayden, "delaying the transfer in order to provide the 30-day notice would interfere with the executive's performance of two related functions that the Constitution assigns to the president: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the president, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances."
We should note that presidents and members of Congress are constantly challenging the constitutionality of each other's actions. And Bush's signing statements often included claims of a constitutional justification.
Still, his decision not to abide by the 30-day requirement amounts to a quite literal nullification of congressional instructions designed for accountability. The last line in Obama's signing statement could be the clearest contradiction because it doesn't just outline constitutional concerns but declares the administration's intentions not to abide by the policy, said Ian Ostrander, a political science professor at Texas Tech University.
Kermit Roosevelt, a University of Pennsylvania law professor, said that while Obama's statement isn't as aggressive as some of Bush's, it asserts a "similar power to disregard federal law under certain circumstances." And Roosevelt said that is inconsistent with Obama's 2007 pledge.
So while Obama may have played it safer than Bush on signing statements, Roosevelt said, his signing statement on Guantanamo detainees did not live up to this particular campaign promise.
When Obama issued his signing statement warning Congress that he reserved the right to disregard a provision of a law passed through Congress, he did something he said he would not do. We rate this a Promise Broken.