President Donald Trump on Friday warned Congress that he might release detainees now held at the Guantánamo Bay detention center for suspected terrorists, despite legislation that prohibits transfers of prisoners.
He also warned that he would not feel bound by a restriction in a new spending law that prohibits the expenditure of funds to enforce federal marijuana laws in states where pot is legal for medical purposes.
In his statement, Trump noted that the spending bill Congress passed this week contained restrictions on transfers of Guantánamo detainees to both the United States and other countries, but provided no exceptions, even in cases of a court ordering a detainee’s release.
“I will treat these, and similar provisions, consistently with my constitutional authority as Commander in Chief,” Trump said.
He made a similar observation about the limit on enforcing federal marijuana laws. “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed,” he said.
Marijuana is illegal under federal law, but 28 states permit its use as medicine.
Trump’s language on Guantánamo was similar to a more expansive signing statement that President Barack Obama issued in November 2015 in response to congressional restrictions on Guantánamo transfers.
Then, Obama wrote, “Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles. . . . In the event that restrictions on the transfer of detainees . . . operate in a manner that violates these constitutional principles, my administration will implement them in a manner that avoids the constitutional conflict.”
In adopting the language, Trump appeared to be using the same commander-in-chief rationale that Obama did in 2014 with the controversial transfer of five Taliban prisoners from Guantánamo to Qatar in exchange for the release of Bowe Bergdahl, a U.S. soldier who’d been taken prisoner in Afghanistan. A Government Accountability Office examination of that exchange concluded that Obama broke the law by not notifying Congress in advance of the trade.
The question is of current interest because Guantánamo’s prosecutor has agreed to support the return to Saudi Arabia later this year or early next year of a Saudi captive who pleaded guilty to terror charges in in 2014 in exchange for his testimony.
Saudi Ahmed al Darbi is expected to testify by deposition later this summer in pretrial hearings in the case of alleged bomber of the USS Cole. After that he will be formally sentenced by a military jury.
The Darbi plea and potential transfer is seen as an early test of whether the Trump administration will honor Obama-era release agreements.
Five of the 41 detainees currently held at the wartime prison were approved for transfer by the inter-agency Periodic Review Board during the Obama administration, but had not been removed from the prison camp when Trump took office.
Rosenberg reports for the Miami Herald.