“The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny” — James Madison, The Federalist Papers, #47.


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The New York Times has a pair of chilling stories indicating Barack Obama is considering ignoring provisions of a new law that forbid him from transferring Guantanamo Bay terrorist detainees to the United States or to countries that may not be equipped to prevent their escape. “Several” anonymous White House officials revealed the president may issue a signing statement ignoring these provisions of the law, treating them as though they did not exist. Times reporter Charlie Savage indicated this would represent “a more aggressive use of unilateral executive powers than what he exerted in his first two years in office.”

The West Wing debate appears to be another example of the president’s determination to rule by executive fiat in 2011.

Congress used the power of the purse to prevent civilian trials for terrorists in U.S. courts. The language, attached to the defense authorization bill, forbids the Defense Department from spending any money to transfer detainees or to enhance U.S. sites to house Gitmo transferees. Another provision requires foreign countries to meet high standards of security before releasing detainees within their borders.

Since the bill authorizes funding for the wars in Iraq and Afghanistan, the president will not veto it. However, the Times indicates he may ignore these provisions, bypass Congress, and bring accused terrorists to U.S. soil before trying them in civilian courts.


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The bill was passed by the overwhelmingly Democratic 111th Congress.

Pro Publica reported Obama also plans to issue an executive order allowing 48 of the remaining 174 remaining detainees being held “indefinitely” access to lawyers, so they can legally challenge their detention or question the evidence presented against them. To date, five of the 66 detainees Obama has freed have returned to terrorism. The Office of the Director of National Intelligence issued a report to Congress last month stating nearly a quarter of the 598 inmates released from Guantanamo have resumed terrorist activities against the United States or are suspected of doing so.

That number is expected to rise.

Republicans are outraged by the president’s threat to unilaterally overrule the law passed by their Democratic colleagues. Rep. Candace Miller, R-MI, told the press, “If the president is determined to work against the will of Congress, then he should use the only tool available to him under the Constitution and veto the legislation.”

In a follow-up story this afternoon, Savage quoted one anonymous official who alleged that the president’s aides had done an about-face, now advising that Obama “not assert that he has the constitutional authority to lawfully bypass federal statutes containing such limits on transferring military detainees.” Savage concluded, “Whatever his aides recommend, the decision about the wording of any signing statement is ultimately up to Mr. Obama.”

Before Congress passed the bill, Attorney General Eric Holder weighed in that these provisions constituted “an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects.”

In leaking the president’s strategy to ignore the law upon which he affixes his signature, an anonymous administration official told Pro Publica, “The bill undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.”

Meanwhile, activists on the Soros-funded hard-Left encourage him to do even more. Laura Pritter of Human Rights Watch (which recently received $100 million from George Soros) said, “There are 174 detainees still at Guantanamo…The administration needs to either prosecute them or release them.” The Center for American Progress has offered an aggressive agenda of executive actions to bypass Congress and promote its left-wing agenda on every front.

Signing statements have long been controversial. In 2006, the American Bar Association deemed signing statements “contrary to the rule of law and our constitutional separation of powers.” While campaigning for president, Barack Obama and other Democratic candidates sharply criticized President George W. Bush’s use of the tactic, saying it undermined the constitutional authority of Congress. (This author also criticized Bush’s overuse of signing statements in radio interviews at the time.) During the campaign, Obama told the Boston Herald, “I will not use signing statements to nullify or undermine congressional instructions as enacted into law.” In March 2009, he issued a memorandum indicating, “I will issue signing statements to address constitutional concerns.”

Obama has demonstrated a pattern of ruling through executive power and selectively enforcing the law — especially on the most controversial and destructive policies of his administration. Obama reinstituted a “death panels” provision to ObamaCare by federal regulation, although Congress rejected the measure. The FCC has imposed Net Neutrality although Congress granted it no such powers, and the EPA is now regulating carbon emissions as a pollutant. David Limbaugh noted in a recent column, “When Congress denied Obama authority to transfer money to the International Monetary Fund, he did so anyway, issuing an executive order promising to give that body $140 billion for redistribution to Third World countries.”

Obama is expected to say this move unconstitutionally limits his ability to prosecute “criminals” as he sees fit. However, the Constitution plainly states Congress controls expenditures. The courts will determine which branch has the stronger argument.

More important even than Obama’s apparent desire to rule by federal fiat, avoiding any pesky democratic input by the people’s representatives on his ultra-liberal policies, are the policies he is advancing by this means. The intention to close the Guantanamo Bay center at all costs is pointless and self-destructive. Obama announced this policy early in his presidency — characteristically enough, by executive order — promising Gitmo would be closed by no later than last January. However, he acknowledged he had absolutely no idea what to do with for the class of prisoners that Robert Gibbs said “can’t be transferred, can’t be tried.” Obama issued the order and demanded a commission find a solution later, opening what this author called “The New Era of Irresponsibility.” Gitmo is uniquely situated to house the worst undesirables far from American civilian targets in an appropriately restrictive environment (albeit one with government-issued Korans, lemon chicken, and a several thousand-volume library). No similar facility exists. Obama decided it was best not to think about this before closing it down.

How can the Left believe Obama’s grandiose plans to end two wars when he cannot even plan an “exit strategy” for 175 terrorists at Gitmo?

Obama is now proceeding full-speed-ahead over the objection of a lopsided Democratic majority in Congress.

His commitment to exercising bald executive power to pursue this idiotic and destructive policy shows both his contempt for the U.S. Constitution and his indifference about the safety of the American people.


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