The 2013 NDAA Signing Statement: No Better Than the 2012 Version
As Ben noted the other day, the Obama administration issued a signing statement on the new NDAA arguing that its Guantánamo detainee-transfer restrictions are unconstitutional as a violation of the separation of powers. The language is similar to last year's signing statement objecting to the 2012 NDAA's transfer restrictions.
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As Ben noted the other day, the Obama administration issued a signing statement on the new NDAA arguing that its Guantánamo detainee-transfer restrictions are unconstitutional as a violation of the separation of powers. The language is similar to last year's signing statement objecting to the 2012 NDAA's transfer restrictions. I published a brief student comment (which is floating around on Lawfare as a reading) in the Harvard Law Review last May, arguing that the signing statement's position was flawed as a matter of law, even if the NDAA restrictions themselves are a total mess:
Although flawed as policy, the NDAA’s detainee-transfer restrictions do not unconstitutionally infringe upon the President’s Commander-in-Chief or foreign affairs powers. Rather, the restrictions are a welcome assertion of Congress’s proper role in regulating wartime detention.Given that the latest NDAA back-and-forth is essentially a repeat of last year, that conclusion, and the analysis behind it, applies just as well this time around.
Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, Research Director and Senior Editor at Lawfare, a Nonresident Senior Fellow at the Brookings Institution, and a Term Member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.
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