Detention: Law of: Legislative Development

The Administration's SAP

By Benjamin Wittes
Friday, November 18, 2011, 8:01 AM

Finally, the administration has spoken clearly, directly, and with direct references to consequences--a veto--about the detainee provisions of the NDAA. The White House's Statement of Administration Policy on the Senate version of the DNA has none of the problems of its earlier statement about the House version of the bill. It distinguishes between big problems and little problems. It distinguishes between forests and trees. And it makes clear that the President will not take provisions like this lying down:

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa'ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation's counterterrorism professionals.

Any bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.

Yesterday morning, before the statement came out, I told Adam Serwer of Mother Jones that if Obama could not convince Congress that he is prepared to use the NDAA as toilet paper, he would have no negotiating leverage and would have to live with genuinely destructive detainee affairs legislation. This statement--assuming it's not a bluff--is a big step towards convincing the legislature that the presidency actually matters in discussions of detention policy. There's a converse to that observation, of course: If the president can convince Congress--perhaps by demonstration--that he's prepared to veto important legislation, he can get legislation here that is affirmatively constructive. I have sketched out in the past what such a bill would look like:

  • House Republicans would get a carefully-crafted iteration of their efforts to reaffirm and update the AUMF;
  • Congress would carefully codify current detention authority;
  • Congress would also codify--and put its own stamp on--the President's Guantanamo review process;
  • The transfer restrictions, the mandatory detention provisions, and the requirements for military commissions would be crushed like bugs;
  • Obama would live with restrictions of his ability to build a new detention facility in the United States.

This deal would be easier to reach if Obama would stop pretending he's going to close Guantanamo--a matter that muddies the waters with a largely symbolic issue that he's not actually prepared to fight for. But even with only the tacit understanding on Guantanamo of the sort that exists now (which amounts to an insistence that it's closing--just not in the sense of actually, you know, closing), the deal is reachable if the administration can prioritize its concerns and convince Congress that the NDAA will not happen without an understanding with the administration.