Will White House Fight Congress Over Civilian Trials for Guantanamo Prisoners?

Officials at the White House and Justice Department are readying a response to last month's congressional measure that sharply limited the executive branch's authority to prosecute or transfer the terror-law prisoners at Guantanamo Bay, Cuba, according to a detailed published report Monday by ProPublica, an online journalism site.

But just how defiant the administration's response will be, and just what sort of practical significance it could or would generate on Capitol Hill, is still an open question and one that administration tribunes are said to be contemplating as the 112th Congress prepares to start work.

Reacting to provisions contained in the military spending measure passed by the lame-duck Congress on Dec. 22 -- provisions that preclude funding for any Defense Department efforts to transfer any of the Gitmo detainees to the United States for any reason -- the Obama administration is reportedly considering at least two options that might raise heat in the dispute over which branch of government controls the destiny of the 174 men still at the Cuban prison. ProPublica's Dafna Linzer reports: "Some Administration officials are recommending that President Obama sign the spending bill and then issue a 'signing statement' challenging at least some of the Guantanamo provisions as intrusions on his constitutional authority. Others have recommended that he express opposition to the Guantanamo sections without addressing their constitutionality."

Let's start with the last sentence first. Even before Congress passed the controversial measure, Attorney General Eric Holder was expressing vehement opposition to the lawmakers' intrusion upon traditional executive branch power to prosecute those accused of federal crimes. Into this category, for example, falls 9/11 mastermind Khalid Sheik Mohammed, who could face murder, terrorism and conspiracy charges in federal civilian court. It was his case, more than anything else, that appears to have changed the political equation over civilian terror trials. The Justice Department was prepared in November 2009 to bring him to New York City for trial -- but New York's leaders balked, citing security and financial concerns, and then Congress, which had supported civilian terror trials under the Bush administration, sought to formally pull the plug on United States v. Mohammed or any other such trial.

Holder has long argued that federal civilian trials for suspected terrorists are both safe and successful -- and the record, both before and after September 11, 2001, backs him up. But a majority in the Congress -- including Democrats in both the Senate and the House of Representatives -- refused to buy Holder's argument. Indeed, surprisingly, the further away from the trauma of 9/11 America has moved, the harder the opposition has become to prosecuting suspected terrorists in regular court. So it is unclear (to me, anyway) what practical impact, if any, the expression of similar concerns by President Obama would have on Capitol Hill now that Republicans have taken over the House and made major inroads in the Senate. Short of refusing to sign the bill, which isn't going to happen, it's hard to imagine the series of words the president could use to change Congress' mind about the fate of the detainees or to otherwise dramatically alter the course of the political debate on the topic.

The other trial balloon floated over the Potomac, the use of a presidential "signing statement" purporting to undercut the constitutional premises of the new Guantanamo legislation, is more forceful legally, more complicated politically, and also pretty much useless as a practical matter. Signing statements, which have been used regularly by presidents for generations -- and which were subject to controversy under the administration of George W. Bush -- offer the executive branch's legal interpretations of the scope of the legislation being signed by the president. These executive branch pronouncements mostly offer posterity, if not federal court judges and law professors, a sense of what the second branch of government thinks about a particular federal law. They suggest -- but do not guarantee -- an unwillingness on the part of the executive branch to enforce that law.

Obama is no Bush when it comes to signing statements. But that hasn't stopped the current president from being mindful about the instances in which he has used them. With all eyes on this defense legislation -- in addition to changing federal law about Gitmo, it also authorizes funding for the American war efforts in Afghanistan and Iraq -- the White House may decide that it doesn't want to take this particular opportunity to challenge Congress. It may want to focus instead upon its pending new rules (also evidently still in draft form) governing the 48 men at Gitmo who are slated for one reason or another for "indefinite detention." As a political matter, this approach might make sense even though, as a legal matter, there is a strong argument to be made that the Congress has overreached its own power in limiting the ability of the executive branch to prosecute these men in federal court if it sees fit to do so.

But even if Obama does formally stick up for the Justice Department (and prosecutorial authority and discretion) by issuing a signing statement, the response on Capitol Hill (and surely down at Gitmo) will likely be a shrug. Things will go on as before. Congress will have spoken -- no civilian trials for detainees -- and its collective, bipartisan voice trumps any sort of signing statement the president's lawyers can gin up. If the administration chooses either of the paths cited in Linzer's article, then, it will be clear that it is looking to make a symbolic point rather than to force a fight over the fate of the men. For the record, the White House will have raised an objection. But the men of Guantanamo, most of whom already have been held without charges for seven years or more, will still be banned from the United States -- and federal prosecutors will be banned from prosecuting them.

If the White House and Justice Department truly want to confront the Congress over the detainees, the executive branch will have to go beyond signing statements. Administration lawyers could ask the federal courts for a declaratory order determining the constitutionality of the Guantanamo provisions, but the law does not favor such actions. I suppose the administration could generate a legitimate case or controversy by ordering non-Defense Department officials, who may or may not be covered by the new law, to transfer to the United States for trial or detention one or more of the Gitmo prisoners. That might generate a legal challenge (by the Guantanamo defendant's attorney, for example) that might bring into play the new legislative directive against such trials. But this sort of end-run around lawmakers -- whether constitutionally justified or not -- would also likely generate a threatened congressional shutdown of funding for the Justice Department, for starters, and who knows where that would lead. With jobs and the economy pressing, I'm guessing few leaders of either party want to find out.

In any event, nothing about the Obama administration's efforts to date in the legal war on terror suggests any such aggressive response to the prosecutorial neutering the Congress has just administered. Although such legislative limitations upon presidential power were unthinkable during the Bush administration, when there were many federal civilian trials for terrorists, nothing in the cards today indicates that a serious showdown is looming. That's good news for future comity in Washington. But it's more bad news for the Guantanamo prisoners and those here and abroad who support the U.S. government's authority to try them in federal court.