8 Pages Posted: 19 May 2012
Date Written: May, 18 2012
Despite the executive branch’s leadership in the war on terror, Congress has periodically passed legislation regarding military detention. Congress’s latest effort was the National Defense Authorization Act for Fiscal Year 2012 (NDAA), which it passed on December 15, 2011, and which President Barack Obama signed into law later that month. In addition to affirming and potentially expanding the President’s detention powers, the NDAA extends for another year restrictions on the President’s ability to transfer Guantánamo Bay detainees to the United States and foreign countries. Although President Obama signed the bill into law, he issued a signing statement criticizing the restrictions on both policy and constitutional grounds, arguing that they could in certain circumstances violate the separation of powers. 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.
Keywords: NDAA, National Defense Authorization Act, Guantanamo, Detention
Suggested Citation: Suggested Citation
Rozenshtein, Alan Z., Recent Legislation: Separation of Powers — National Security — Congress Restricts Guantánamo Transfers, Prompting Constitutional Signing Statement Objection — National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (2011) (To Be Codified in Scattered Sections of the U.S. Code) (May, 18 2012). 125 Harvard Law Review 1876 (2012). Available at SSRN: https://ssrn.com/abstract=2062619