Trump may ignore Guantánamo transfer ban in new spending law

In this May 4, 2017, photo, President Donald Trump talks to House Speaker Paul Ryan of Wis. in the Rose Garden of the White House in Washington, after the House pushed through a health care bill.
In this May 4, 2017, photo, President Donald Trump talks to House Speaker Paul Ryan of Wis. in the Rose Garden of the White House in Washington, after the House pushed through a health care bill. ASSOCIATED PRESS

President Donald Trump told Congress Friday that he might release detainees held at the Guantánamo Bay prison for suspected terrorists, despite legislation that prohibits transfers of prisoners.

He also said he would not feel bound by a restriction in a new spending law that prohibits spending money to enforce federal marijuana laws in states where the drug is legal for medical purposes.

Trump noted that the spending bill Congress passed this week contained restrictions on transfers of Guantánamo detainees to the United States and other countries, but provided no exceptions for when a court orders a detainee’s release.

“I will treat these, and similar provisions, consistently with my constitutional authority as commander in chief,” Trump said in a statement.

Read Trump’s signing statement

He made a similar observation about the limit on enforcing federal marijuana laws. “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed,” he said.

Marijuana is illegal under federal law, but 28 states permit its use as medicine.

A detainee stands in the common area of the cell block on Feb. 11, 2017, at Camp Six at Guantánamo’s Detention Center Zone. The military approved release of this photo. EMILY MICHOT

Trump’s language on Guantánamo was similar to a more expansive signing statement that President Barack Obama issued in November 2015 in response to congressional restrictions on Guantánamo transfers.

Then, Obama wrote, “Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles. … In the event that restrictions on the transfer of detainees … operate in a manner that violates these constitutional principles, my administration will implement them in a manner that avoids the constitutional conflict.”

In adopting the language, Trump appeared to be using the same rationale that Obama did in 2014 with the transfer of five Taliban prisoners from Guantánamo to Qatar in exchange for the release of Bowe Bergdahl, a U.S. soldier who had been taken prisoner in Afghanistan. A Government Accountability Office examination of that exchange concluded that Obama broke the law by choosing not to notify Congress before the trade.

The question is of current interest because Guantánamo’s prosecutor has agreed to support the return to Saudi Arabia later this year or early next year of a Saudi captive who pleaded guilty to terrorism charges in in 2014 in exchange for his testimony.

Saudi Ahmed al Darbi is expected to testify by deposition this summer in pretrial hearings in the case of a man charged with bombing the USS Cole in October 2000. After that he will be sentenced by a military jury.

The Darbi plea and potential transfer is seen as a test of whether the Trump administration will honor release agreements reached under Obama.

MORE NEWS: New boss for new captives? Admiral takes charge of Trump’s Guantánamo prison

Five of the 41 men now held at the Guantánamo prison were approved for transfer by the inter-agency Periodic Review Board during the Obama administration, but had not been removed from the prison camp by the time Trump took office.

Editor’s note: Rosenberg reported from Miami while Ordoñez contributed from Washington, D.C.

Carol Rosenberg: 305-376-3179, @carolrosenberg

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