Today, I signed Law S. 1605, the “National Defense Authorization Act for Fiscal Year 2022” (the “Act”). The law authorizes budgetary appropriations mainly for the Ministry of Defense, for the national security programs of the Ministry of Energy and for the Ministry of State. The law provides essential benefits and improves access to justice for military personnel and their families, and includes essential authorities to support the national defense of our country.

Unfortunately, section 1032 of the law continues to prohibit the use of funds to transfer detainees from Guantánamo Bay into the custody or effective control of certain foreign countries, and section 1033 of the law prohibits the use of funds to transfer detainees from Guantánamo Bay to the United States. unless certain conditions are met. It is the executive’s long-held position that these provisions unduly hamper the executive’s ability to determine when and where to prosecute Guantánamo Bay detainees and where to send them upon release. In certain circumstances, these provisions could make it difficult to enforce the final judgment of a court which has ordered the release of a detainee on a request for habeas corpus. In addition, the limitations of Article 1032 of the law restrict the flexibility of the executive with regard to its engagement in sensitive negotiations with foreign countries on the potential transfer of detainees and thus may, in some cases, make it difficult the transfer of detainees. in a way that does not threaten national security. I urge Congress to remove these restrictions as soon as possible.

In addition, certain provisions of the Act raise constitutional concerns or questions of interpretation.

Certain provisions of the Act, including Articles 1048, 1213 (b), 1217 and 1227 (a) (1), will effectively require ministries and executive agencies to submit reports to certain committees which, in the normal course, will include Highly sensitive classified information reports, including information that could reveal critical intelligence sources or military operational plans. The Constitution gives the President the power to prevent the disclosure of such sensitive information in order to fulfill his responsibility to protect national security. At the same time, congressional oversight committees have legitimate needs to exercise vital oversight and other legislative functions with respect to national security and military matters. Accordingly, it has been standard practice of the executive branch to comply with statutory reporting requirements in a manner which meets the needs of Congress consistent with the traditional practice of accommodation and with due regard to protection against unauthorized disclosure of classified information relating to sensitive intelligence sources. and methods or other exceptionally sensitive matters. I believe Congress agrees with this interpretation, and my administration will assume that it is incorporated into statutory reporting requirements of the type at issue in law.

Sections 6103 (a) and 6503 (b) of the Act would tell the executive how to proceed in discussions or votes in international organizations. I recognize that “[i]It is not for the President alone to determine all the content of the Nation’s foreign policy ”(Zivotofsky v. Kerry) and will endeavor to act in accordance with these directives. Indeed, I support the objectives expressed in these provisions. Nonetheless, I will not treat them as limiting my constitutional authority to express United States views before international organizations and with foreign governments.

Section 351 of the law requires the Secretary of Defense to create a task force “to integrate efforts to alleviate disputed logistical challenges by reducing the demand for operational energy.” It provides that the service secretaries “appoint” four of the members of the working group subject to the “confirmation” of the Senate. The working group is an entity of the executive branch responsible for making recommendations and coordinating certain functions within the Ministry of Defense. Because its members would not be “officers” in the constitutional sense but would have more than an advisory role in the functioning of the executive, submitting them to the confirmation of the Senate would be contrary to the anti-enlargement principle of the separation of powers, by empowering part of Congress to directly interfere with the selection of employees by the executive. See Bowsher v. Synar; The constitutional separation of powers between the President and Congress, Op. OLC 124, 131-32 (1996). Of course, Congress may establish offices under the laws of the United States and provide for appointment to such offices in a manner consistent with the appointment clause (US Const. Art. II, sec. 2, cl. 2), which may include appointment by the President by and with the advice and consent of the Senate. The appointment clause, however, gives the Senate no role in the appointment of non-commissioned officers, let alone the power to “confirm” appointments by lower officers such as duty secretaries. Therefore, while I anticipate that on-duty secretaries will be able to consult with members of the Senate in deciding who to appoint to the working group and welcome their input, on-duty secretaries will not refer these appointees to the Senate working group. for confirmation.

Finally, I oppose the use of open burns, which is prohibited in emergency operations by Public Law 111-84, Section 317 (note 10 USC 2701). I request that the Secretary of Defense seek presidential approval before exercising the power to exempt from this prohibition added by section 316 of the law.

JOSEPH R. BIDEN JR.

THE WHITE HOUSE,
December 27, 2021.

###