Detention: Law of: Legislative Development

Is the Conference Report Veto Worthy?

By Benjamin Wittes
Tuesday, December 13, 2011, 9:34 AM

I am still digesting the new NDAA language, and I'm not yet ready to say how come out on it. It is, without question, significantly better than either the House or Senate bills. Yet some of its provisions remain deeply troubling. While I haven't seen anything from the White House yet about how this latest incarnation of the bill interacts with its previous veto threats, I have a sneaking suspicion that the conferees may have done just enough to avoid a veto. Here's why:

  • The mandatory detention provision, while still odious, has been significantly weakened. I can still envision cases in which it would present problems, but the list may be short, and the White House may decide it no longer presents a significant operational problem.
  • The House effort to rewrite the Guantanamo review process is gone--as is the requirement of military commission trials.
  • While the transfer restrictions remain, they are no net loss to the administration over current law.

In other words, one can make an argument that the administration does not lose a whole lot of ground in this version of the bill. I can argue it the other way too: Only a veto will force a more serious discussion of the administration's preferences and allow it to regain some of the ground it has already lost, and the current bill does still in some ways make things worse. But the current draft presents a less obvious case for a veto than the earlier versions. I'll be very interested to see how the White House reacts to it.