An Imbalance of Power Between Governmental Branches?

On January 3, 2013 President Obama signed the National Defense Authorization Act (NDAA) for the 2013 year.[1]  The NDAA “determines which agencies are responsible for defense, provides funds to those agencies and contains instructions on how to utilize those funds.”[2]  Included in the NDAA is section 1025 which deals with the transfer of non-Afghan prisoners in the Parwan detention facility in Afghanistan.[3]  The section will require the Secretary of Defense to give written notice to certain congressional committees 10 days in advance of transfer of non-Afghan detainees.[4] The appropriate committees to be given notice are defined in the act as: the “Committee of Armed Services and the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations and Committee of Armed Services of the Senate.”[5] But the Secretary of Defense must make certain assessments regarding the detainees before he or she gives notice. Those assessments are:

(1) In the case of the proposed transfer of such an individual by reason of the individual being released, an assessment of the threat posed by the individual and the security environment of the country to which the individual is to be transferred.

(2) In the case of the proposed transfer of such an individual to a country other than Afghanistan for the purpose of the prosecution of the individual, an assessment regarding the capacity, willingness, and historical track record of the country with respect to prosecuting similar cases, including a review of the primary evidence against the individual to be transferred and any significant admissibility issues regarding such evidence that are expected to arise in connection with the prosecution of the individual.

(3) In the case of the proposed transfer of such an individual for reintegration or rehabilitation in a country other than Afghanistan, an assessment regarding the capacity, willingness, and historical track records of the country for reintegrating or rehabilitating similar individuals.

(4) In the case of the proposed transfer of such an individual to the custody of the Government of Afghanistan for prosecution or detention, an assessment regarding the capacity, willingness, and historical track record of Afghanistan to prosecute or detain long-term such individuals.[6]

The section does not say that Congressional approval is required for a transfer to occur, only that notice is needed. This silence can be interpreted as meaning that Congress in fact has no power to approve or disapprove the transfers. However, the 10-day notice period can give Congress time to act in response to certain transfers.

President Obama issued a signing statement discussing a number of provisions including section 1025. Presidents use signing statements to provide clarity on their positions on the bill and voice any objections they may have. The signing statement also may provide how the president intends to implement the law.[7] In the statement the President writes that section 1025 may be an “unwarranted interference” by Congress with the military’s ability to use its expertise in order to determine whether to transfer a detainee.[8] The President also says it could interfere with his ability as Commander-in-Chief to make “time-sensitive decisions” regarding detainees in an “active area of hostilities.”[9] He makes the point that under certain circumstances section 1025 can “violate constitutional separation of powers principles”, and states that if such a conflict occurs he may implement the section so to “avoid the constitutional conflict.”[10] The President’s statement means that he will not implement the section the way Congress would want because of his duties as Commander-in-Chief. In other words if the President encounters a transfer situation where time is an issue he may choose to avoid the procedure set up in section 1025 and handle the transfer quickly based on the information he has available.

What effect section 1025 and the signing statement will have in Afghanistan seems unclear. The section only applies to non-Afghan detainees who are being considered for transfer. The limit of Congressional assertion of power here seems only to be its requirement of a 10-day notice of these non-Afghan transfers. The President and the executive branch seem to have no or very limited obligation placed on them to Congress through this section. The signing statement seems unnecessary since even with section 1025 being followed full force Congress would not be able to stop the transfers-though Congress could use the 10-day period to pass legislation attempting to forbid the transfers from taking place at all. However, Robert Chesney, a professor at the University of Texas Law School, says the 10-day notice provision may be a “foreshadowing” of future clashes between the branches in the future.[11] He poses the possibility that “we at some point see a sharp clash between executive discretion to shut down its detention operations (as part of a diplomatic agreement with Afghanistan) and Congressional efforts to perpetuate detention operations.”[12] Only time will tell how this provision of the NDAA will change things in Afghanistan.


[1] Adalia Woodbury, A Rational Analysis of NDAA 2013 (Jan. 10, 2013), http://www.politicususa.com/rational-analysis-ndaa-2013.html.

[2] Id.

[3] Id.

[4] National Defense and Authorization Act of 2013 § 1025(a) (2013), http://www.govtrack.us/congress/bills/112/s3254/text.

[5] Id. at § 1025(c).

[6] Id. at § 1025(b).

[7] Woodbury, supra note 1.

[8] Statement by the President on H.R. 1540 (Dec. 31, 2011), http://www.whitehouse.gov/the-press-office/2011/12/31/statement-president-hr-1540.

[9] Id.

[10] Id.

[11] Robert Chesney, The NDAA and Detention in Afghanistan: Congress Takes a Step Toward Greater Involvement (December 20, 2012), http://www.lawfareblog.com/2012/12/the-ndaa-and-detention-in-afghanistan-congress-takes-a-step-toward-greater-involvement/.

[12] Id.