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Obama Promised Not to Use Signing Statements, but Released One Last Night

8:37 AM, Jan 3, 2013 • By DANIEL HALPER
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In 2008, Barack Obama promised that he would not use signing statements, but last night he released one to accompany his signing of the National Defense Authorization Act for Fiscal Year 2013.

Here's Obama's pledge:

He said that signing statements are a presidential power grab, and made clear he believed it violated the Constitution.

Overnight, however, Obama released this signing statement, in an attempt to try to change the meaning of the defense bill Congress sent to him for his signature:

 THE WHITE HOUSE 

 Office of the Press Secretary                         

For Immediate Release         January 2, 2013 

STATEMENT BY THE PRESIDENT 

 Today I have signed into law H.R. 4310, the "National 

Defense Authorization Act for Fiscal Year 2013."  I have 

approved this annual defense authorization legislation, as 

I have in previous years, because it authorizes essential 

support for service members and their families, renews vital 

national security programs, and helps ensure that the 

United States will continue to have the strongest military 

in the world.   

 Even though I support the vast majority of the provisions 

contained in this Act, which is comprised of hundreds of 

sections spanning more than 680 pages of text, I do not agree 

with them all.  Our Constitution does not afford the President 

the opportunity to approve or reject statutory sections one by 

one.  I am empowered either to sign the bill, or reject it, as 

a whole.  In this case, though I continue to oppose certain 

sections of the Act, the need to renew critical defense 

authorities and funding was too great to ignore. 

 In a time when all public servants recognize the need to 

eliminate wasteful or duplicative spending, various sections in 

the Act limit the Defense Department's ability to direct scarce 

resources towards the highest priorities for our national 

security.  For example, restrictions on the Defense Department's 

ability to retire unneeded ships and aircraft will divert scarce 

resources needed for readiness and result in future unfunded 

liabilities.  Additionally, the Department has endeavored to 

constrain manpower costs by recommending prudent cost sharing 

reforms in its health care programs.  By failing to allow 

some of these cost savings measures, the Congress may force 

reductions in the overall size of our military forces.  

 Section 533 is an unnecessary and ill-advised provision, 

as the military already appropriately protects the freedom of 

conscience of chaplains and service members.  The Secretary of 

Defense will ensure that the implementing regulations do not 

permit or condone discriminatory actions that compromise good 

order and discipline or otherwise violate military codes of 

conduct.  My Administration remains fully committed to 

continuing the successful implementation of the repeal of Don't 

Ask, Don't Tell, and to protecting the rights of gay and lesbian 

service members; Section 533 will not alter that. 

 Several provisions in the bill also raise constitutional 

concerns.  Section 1025 places limits on the military's 

authority to transfer third country nationals currently held at 

the detention facility in Parwan, Afghanistan.  That facility is 

located within the territory of a foreign sovereign in the midst 

of an armed conflict.  Decisions regarding the disposition of 

detainees captured on foreign battlefields have traditionally 

been based upon the judgment of experienced military commanders 

and national security professionals without unwarranted  

interference by Members of Congress.  Section 1025 threatens to 

upend that tradition, and could interfere with my ability as 

Commander in Chief to make time-sensitive determinations about 

the appropriate disposition of detainees in an active area of 

hostilities.  Under certain circumstances, the section could 

violate constitutional separation of powers principles.  If 

section 1025 operates in a manner that violates constitutional 

separation of powers principles, my Administration will 

implement it to avoid the constitutional conflict. 

 Sections 1022, 1027 and 1028 continue unwise funding 

restrictions that curtail options available to the executive 

branch.  Section 1027 renews the bar against using appropriated 

funds for fiscal year 2012 to transfer Guantanamo detainees into 

the United States for any purpose.  I continue to oppose this 

provision, which substitutes the Congress's blanket political 

determination for careful and fact-based determinations, made by 

counterterrorism and law enforcement professionals, of when and 

where to prosecute Guantanamo detainees.  For decades, 

Republican and Democratic administrations have successfully 

prosecuted hundreds of terrorists in Federal court.  Those 

prosecutions are a legitimate, effective, and powerful tool in 

our efforts to protect the Nation, and in certain cases may be 

the only legally available process for trying detainees.  

Removing that tool from the executive branch undermines our 

national security.  Moreover, this provision would, under 

certain circumstances, violate constitutional separation of 

powers principles. 

 Section 1028 fundamentally maintains the unwarranted 

restrictions on the executive branch's authority to transfer 

detainees to a foreign country.  This provision hinders the 

Executive's ability to carry out its military, national 

security, and foreign relations activities and would, under 

certain circumstances, violate constitutional separation of 

powers principles.  The executive branch must have the 

flexibility to act swiftly in conducting negotiations with 

foreign countries regarding the circumstances of detainee 

transfers.  The Congress designed these sections, and has here 

renewed them once more, in order to foreclose my ability to shut 

down the Guantanamo Bay detention facility.  I continue to 

believe that operating the facility weakens our national 

security by wasting resources, damaging our relationships with 

key allies, and strengthening our enemies.  My Administration 

will interpret these provisions as consistent with existing 

and future determinations by the agencies of the Executive 

responsible for detainee transfers.  And, in the event that 

these statutory restrictions operate in a manner that violates 

constitutional separation of powers principles, my 

Administration will implement them in a manner that avoids 

the constitutional conflict. 

 As my Administration previously informed the Congress, 

certain provisions in this bill, including sections 1225, 913, 

1531, and 3122, could interfere with my constitutional authority 

to conduct the foreign relations of the United States.  In these 

instances, my Administration will interpret and implement these 

provisions in a manner that does not interfere with my 

constitutional authority to conduct diplomacy.  Section 1035, 

which adds a new section 495(c) to title 10, is deeply 

problematic, as it would impede the fulfillment of future U.S. 

obligations agreed to in the New START Treaty, which the Senate
provided its advice and consent to in 2010, and hinder the 

Executive's ability to determine an appropriate nuclear force 

structure.  I am therefore pleased that the Congress has 

included a provision to adequately amend this provision in 

H.R. 8, the American Taxpayer Relief Act of 2012, which I will 

be signing into law today. 

 Certain provisions in the Act threaten to interfere with 

my constitutional duty to supervise the executive branch.  

Specifically, sections 827, 828, and 3164 could be interpreted 

in a manner that would interfere with my authority to manage 

and direct executive branch officials.  As my Administration 

previously informed the Congress, I will interpret those 

sections consistent with my authority to direct the heads of 

executive departments to supervise, control, and correct 

employees' communications with the Congress in cases where such 

communications would be unlawful or would reveal information 

that is properly privileged or otherwise confidential.  

Additionally, section 1034 would require a subordinate to submit 

materials directly to the Congress without change, and thereby 

obstructs the traditional chain of command.  I will implement 

this provision in a manner consistent with my authority as the 

Commander in Chief of the Armed Forces and the head of the 

executive branch. 

 A number of provisions in the bill -- including 

sections 534(b)(6), 674, 675, 735, 737, 1033(b), 1068, and 

1803 -- could intrude upon my constitutional authority to 

recommend such measures to the Congress as I "judge necessary 

and expedient."  My Administration will interpret and implement 

these provisions in a manner that does not interfere with my 

constitutional authority. 

      BARACK OBAMA 

THE WHITE HOUSE, 

    January 2, 2013. 

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