Detention & Guantanamo

Andrew Cohen on the 1022 Implementation Procedures

By Benjamin Wittes
Thursday, March 1, 2012, 10:51 PM

Over at The Atlantic, Andrew Cohen offers this analysis of President Obama's implementation procedures for Section 1022 of the NDAA. Cohen generously sites and quotes my post explaining the procedures, but he goes on to take issue with my characterization of them as "not a breach of faith with Congress":

Wittes may not believe the newly stated White House procedures are a breach of faith with Congress. But they surely send a signal to Capitol Hill that the administration intends to continue the aggressive assertion of executive-branch power initiated by George W. Bush following September 11, 2001.

I'm a little perplexed by this characterization. It seems to me that Obama did rather the opposite of a Bush-era assertion of executive power here. To put it simply, Obama didn't do violence to a bill that meant something by reading it to mean nothing. Rather, he engaged with the legislative process to water down a bill he couldn't live with to the point that it actually did mean nothing.

To wit, during the legislative negotiations over the NDAA, Obama threatened a veto if the mandatory detention language were not changed or removed. His senior national security officials fanned out over the Hill to warn of the damage the provision could do. And the veto threat--and the lobbying--prompted significant changes to what became Section 1022, changes that were, in fact, so significant that they denuded the provision of any real policy bite. The guidance Obama issued this week is hardly an aggressive reading of the statute as it actually passed. It is, rather, a reasonable reading of the compromise that Congress and the President reached--a compromise under which Congress passed a symbolic mandatory detention provision that has no teeth in practice. This was clear, it is worth emphasizing, at the time--before the President's signing statement, let alone the new procedures.

This isn't, to use Cohen's words, an "aggressive assertion of executive-branch power." It reflects, rather, a respect for legislative power--in this case, the legislative power to, quite deliberately, do virtually nothing.