Detention: Law of: Legislative Development

Is the President’s Veto Threat Credible?

By Jack Goldsmith
Monday, November 21, 2011, 6:24 AM

Ben wrote last week about the Administration’s threat to veto the Defense Authorization Bill, in large part because of its detainee transfer and related provisions.  As Josh Gerstein notes, “whether for political reasons or due to some complex internal dynamics, the administration seems at this point willing to put up more of a public fight over detainee-related strictures than it has in the past.  However, whether that will ultimately translate to a willingness to blow up the defense bill with a veto is unclear.”

I doubt that the President will blow up the bill.  Too many liberal democrats, including Senate Arms Services Chair Carl Levin, support it, so the president cannot charge political extremism.  And as John McCain has said, “[t]here is too much in this bill that is important to this Nation's defense.”  Is the president really going to expose himself, in an election cycle, to the charge (fair or not) that he jeopardized the nation’s defenses in order to vindicate the principle of presidential discretion to release terrorists from GTMO or to bring them to the United States to try them in civilian courts?  It is the right principle, but it is a generally unpopular one that the president has not to date fought for.  I doubt he will start fighting for it eleven months before the election.

If I am right, it raises the question why the president “ratcheted up the stakes . . . with a threat of a veto,” as Senator McCain put it.  He may have done so to appease the left side of his party.  But failing to veto the bill after threatening one will hardly make the left happy; it is more likely to confirm its belief that he is spineless on detention issues.  It will also undermine further the credibility of the president’s veto threat.  This logic suggests that the administration would not have threatened a veto unless it intended to follow through.  I still think electoral politics will win out, and that the administration will back down.  But if I am wrong, and if the President acts on principle and vetoes the bill despite the political costs, one wonders why he did not fight for the principle earlier, when the political context was more favorable.