Detention & Guantanamo

The Administration's Strategic Errors--And Some Free Advice

By Benjamin Wittes
Thursday, June 30, 2011, 9:26 AM

As things stand now, the National Defense Authorization Act could end up being a disaster for the Obama administration on detainee matters. Much of the fault for this lies with Congress, a bipartisan majority of which insists upon injecting reckless and irresponsible detainee-related policy ideas into what should be a careful effort to craft long-term law. But let's be frank: The administration and President Obama personally also bear non-trivial responsibility for the current state of affairs. Faced with a Congress that clearly wants to legislate in this space--which is hardly a bad thing, in and of itself--the President has articulated no coherent vision of what constructive legislation would look like. In fact, since his National Archives speech more than two years ago--a speech in which he promised to "work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution"--he has had virtually nothing to say about the subject at all. He has, quite simply, refused to lead and thus created the vacuum that Congress is filling with a combination of good, bad, and ugly ideas.

The administration's engagement with Congress has been altogether passive-aggressive. It refuses to engage in a serious way, because Congress does not behave responsibly. In the absence of firm executive leadership, Congress then does behave irresponsibly--passing transfer restrictions, for example. And this fact then gets cited in the next go around as evidence that one cannot deal with Congress because it behaves irresponsibly. My nostalgia for the Bush administration is, shall we say, altogether under control, but I would point out that Bush understood something fundamental about dealing with Congress on national security matters that seems persistently to elude this administration: When the President says clearly and publicly what he needs on a national security matter and puts the weight of the presidency's prestige behind it, he tends to get some version of what he wants. But he has to be willing to put skin in the game and make it a priority. This administration's priorities lie elsewhere and Congress can smell that. If the president waits passively for Congress to come up with ideas and then resists those ideas, he will get rolled. That is what is happening--over and over and over again.

What's more, in resisting these ideas for which it has waited passively, the administration has shown an odd series of priorities--priorities that I think are also strategically indefensible. Faced with simultaneous proposals to write into law an AUMF reaffirmation that arguably gives the administration too much latitude, along with hand-tying restrictions on transfers and Article III criminal trials of terrorism suspects, codification of a detainee review process in a fashion more restrictive than the administration's own executive order, and mandatory military detention for terrorism suspects, the administration has utterly failed--at least publicly--to distinguish between threats of very different magnitude. Its original SAP objected first to the AUMF reauthorization, though it would not limit the president's options at all. It comes down hard on the codification of the review proceess--though that is surely an area where negotiations are possible. The administration objects to everything--and with approximately equal verve--and that fact greatly diminishes the power of its arguments about both the House's and Senate's most objectionable provisions. These get lost in a flurry of larger argumentation, much of which is of far more debatable merit. Indeed, the AUMF reaffirmation issue has dominated the public debate, though even if the critics are right in every particular, it poses no threat whatsoever to the administration's ambitions to conduct the conflict as it sees fit.

Indeed, while I don't know how the administration engaged with the Senate over its version of the NDAA behind closed doors, the product that has emerged from the Armed Services Committee looks suspiciously as though the administration's and Democrats' confused priorities may have caused real damage. The administration's big win is that the Senate version of the bill has emerged with no AUMF reauthorization and no clear restriction on Article III trials. The latter is a significant victory. But the former is not. And the Senate bill came out with transfer provisions that are in some respects worse than the House bill's and mandatory military detention language that was stripped out of the House bill altogether. I can't help but suspect that the administration has shot itself in the foot by failing to distinguish existential problems from manageable ones. In any event, it now faces the prospect of a conference committee in which both houses--particularly on the transfer provisions--have included highly-objectionable language that will be extremely difficult to strip out.

In practice, the administration's only tool now is the veto threat. If it is going to snatch decent policy from the jaws of two very flawed bills, it is going to have to use this tool both aggressively and with greater discrimination than it has done so far. In particular, three things need to happen:

  1. President Obama needs to speak. There is not going to be no bill. He needs to talk about what kind of bill he wants, what it would be constructive for Congress to do, and what kind of bill would be destructive and warrant his veto. He needs to give Congress an alternative course to the one it is on, one that accepts the legitimacy of legislative involvement and channels it in a direction that would be helpful, rather than destructive. He needs to propose something.
  2. The administration needs to prioritize its objections. Some themes with which Congress is working--AUMF reaffirmation, codifying the review process--are matters over which the administration could engage and compromise. Some, by contrast, are issues on which one side or the other simply has to lose. The administration cannot afford to keep failing to distinguish between the two categories, not in public and particularly not (if this is happening) behind closed doors.
  3. The administration should make clear that three categories of provision will trigger a veto. It will veto any bill that prevents reasonable detainee transfers and any bill that either requires military detention or that prevents the use of Article III courts where the executive branch deems that an appropriate disposition. On everything else, it should be willing to negotiate. On these points it should not.

I acknowledge that if the administration follows this course, it may lose. It may end up with transfer restrictions and mandatory detention passed over its veto. But it may end up with those anyway. At least if it follows this course it will have taken a clear position and articulated a vision. Right now, it speaks for nothing and seems afraid of its shadow.