The American Civil Liberties Union has given President Obama a clever way to elide the ban on funds for transferring Gitmo detainees for trial that would allow the president to avoid relying on the sort of broad executive power claimed by the last administration. Charlie Savage reports that instead, the ACLU wants Obama to make a signing statement making clear that the ban only applies to Department of Defense funds, not those appropriated by other agencies:
Sections 1032 and 1033 do not prohibit the Department of Justice (“DOJ”) from using its own funds to transfer criminal defendants from Guantanamo to federal criminal court in the United States, and do not prohibit the Department of Homeland Security (“DHS”) or State from using their own funds to transfer detainees from Guantanamo for resettlement or repatriation in foreign countries. In other words, section 1032 does not prohibit DOJ from sending a plane with federal marshals to transport detainees from Guantanamo to federal criminal court in the United States for prosecution. Similarly, section 1033 does not prohibit DHS or the State Department from sending a plane to Guantanamo to transfer a detainee from Guantanamo to a foreign country. No NDAA-authorized funds, or any other DOD funds would be required for such transfers by other departments.
In other words, Obama would neither simply be defying the will of Congress, imperial presidency style, nor would he be prevented from taking action on his promise to close Gitmo. I'm not entirely sure the solution the ACLU suggests is entirely logistically feasible, but if it works, it provides a solution to the moral dilemma faced by liberals who want to see Guantanamo closed and the rule of law -- including limits on executive power -- respected.
As Savage writes, this depends on how the administration interprets the statute, and if they see it as meant to be an absolute ban, the ACLU wants Obama to veto it -- which he almost certainly won't. At the same time, I think they have identified a pretty big loophole. If Congress really wants an absolute ban they can pass one, although I'm not sure that it would be constitutional. At the very least, as Marcy Wheeler writes, because this option avoids reinforcing Bush-era arbitrary assertions of executive power and offers a chance for progress on closing Gitmo, it puts the White House in a position where actually choosing to adhere to the ban is an active decision rather than simple acquiescence.