Guantanamo: Legislation

So What Does the New Republican Majority Mean for National Security Issues In Congress?

By Benjamin Wittes
Wednesday, November 5, 2014, 4:17 PM

The result is no surprise: Republicans now control both houses of Congress---or, at least, they will come January. I'll leave it to others to dissect how we should understand last night's electoral results in political terms, what it means for President Obama, the 2016 election, or the future of American politics. Here I want to focus on a narrower question: What does it mean for the set of issues Lawfare covers? A few years ago, the answer to this question would not have been murky. GOP control over Congress would have meant unrelenting pressure on the administration on matters related to Guantanamo and counterterrorism policy generally. Today, however, the consequences of a GOP Senate takeover are murky. They are murky both because ideological lines over questions of surveillance and executive authority have blurred and because President Obama has at once need of congressional help and a certain propensity to marginalize Congress on war powers matters. The result is that there are a lot of variables at play when you imagine how different national security legal issues are likely to play out in Congress over the next couple of years---particularly since the 2016 presidential elections will be looming over everything as of, well, just about now. For whatever they're worth, here are some thoughts on how yesterday's election results may impact certain high-profile issues.

Let's start with the easy one: Detention policy and closing Guantanamo. The impact here will, I think, be vanishingly slight. The reason is that there was no prospect of getting a Guantanamo closure done before, so the marginal impact of Republican Senate majority will not be significant. Congress has already put in place the restrictions on transfers that it's likely to put in place. And short of removing people from Guantanamo, the executive branch has near total flexibility regarding how to handle new detainees. Even a Republican congress (particularly one disciplined by the prospect of a presidential veto) seems unlikely to meddle more than cosmetically in that discretion. The result is that there isn't much room for detention policy to move---and it therefore won't move. There may be more noise on the subject than there was before, as threats by GOP committee chairmen and leadership to put new restrictions into legislation provoke administration responses, but at the end of the day, the status quo here is pretty stable. Obama can't close Guantanamo, and Republicans can't force him to bring new captives to it or to try them in military commissions.

The one thing that could really upset that status quo would be an effort by Obama to close Guantanamo on his own authority---an idea the White House floated a few weeks ago. As I said then, I don't think this is a serious prospect. I can't imagine that Obama will want to provoke a nuclear confrontation with the Congress (including many Democrats) over this. While I do think there will be showdown issues over the next two years that pit the Congress against the President, I don't believe this will be one of them. Put Guantanamo and detention in the category of bark but no bite.

One area that may see real movement is authorization for the ISIL military confrontation and, more generally, reform of the AUMF. This is an area where all sides have played it a bit coy, with both Congress and the administration signaling a desire to see an ISIL AUMF but also indicating that it wants the other to initiate the discussion. That coyness may fade now that the election is over, and it's possible we'll see action on this issue in a lame duck session. But if not, the prospects of an authorization under unified Republican control of Congress seem to me notably brighter than under divided partisan control. The reason is two-fold. First, the Republican Senate caucus has a number of members---John McCain and Lindsey Graham, most notably---who are decidedly more enthusiastic about U.S. military engagement in the region than is either the center of gravity of the Democratic caucus or, for that matter, the administration itself. So there will be an enthusiasm for pushing the administration to do more. More significantly, the GOP caucus does not have the same sort of large faction that is reticent about overseas involvement as does the Democratic caucus. The result is that it is easier to imagine a meeting of the minds between an administration that "welcomes" an authorizing resolution and a Congress that wants to be on record as pushing that administration towards more, not less, action. While I would not necessarily describe a bill here as likely, it strikes me as much likelier than it would have been had Democrats retained control of the chamber.

The biggest question mark is what it all means for surveillance reform. The change in power in the Senate has the potential significantly to upend the legislative compromise the White House reached with senators led by Patrick Leahy---who will no longer be the chairman of the Judiciary Committee now that his party has lost control of the body. One possibility is that the Senate compromise bill will go through during the lame duck, but this seems to me unlikely. The bill, while it has the White House's endorsement, has yet to be reconciled with the House version, which is different in some important respects. And with House Intelligence Committee Chairman Mike Rogers, the key figure in the House, retiring, and Leahy losing his position as the Senate fulcrum, I'm not sure who will have the clout to negotiate a bicameral bill in the brief time before all of the key figures shift. That means we're likely to see a do-over next year.

If that's right, it'll be a do-over with a tight deadline. Section 215 expires in May of next year, so the administration needs a bill by then if the metadata program is not going to turn into a pumpkin. So the question is whether a Senate under GOP control and a GOP House without Rogers are likely to produce a bill that is similar to or different from the ones currently on the table---and if different, different in what direction. The answer to these questions remains opaque to me. As Steve Vladeck notes on Just Security today, it's possible that the libertarian-liberal axis in the House will grow stronger, forcing any compromise to be more civil-liberties friendly than the current House bill is. It's equally possible, however, that nothing has fundamentally changed in the House, whereas the change in the Senate---where the libertarian conservatives are weaker---will cause the ultimate bill to be more friendly to the intelligence community. Remember that what happened yesterday was not simply that Democrats lost control of the chamber. One of NSA's biggest congressional critics---Colorado Senator Mark Udall---lost his seat entirely. Leahy, the pivotal figure in the compromise, lost his chairmanship. The result could be a bill with which NSA will be happier and the civil libertarians less happy. There's also the vague possibility that the result is no bill at all, though I think this is unlikely.

To put matters simply, the politics in this space are strange, and one variable that will affect them is how much grass-roots pressure members get from voters who want big changes in these areas. The presidential skirmishing will also play a role. Are these national security issues ones that candidates are talking about or are they background features? A great deal, I suspect, will depend on the ambiance of our politics as the year wears on.

UPDATE: President Obama at a press conference today said he will ask Congress for an ISIS resolution. Bloomberg reports:

President Barack Obama said he’ll ask the lame-duck Congress to give him authorization to use military force against Islamic State militants, a shift in the administration’s approach to an offensive already under way in Iraq and Syria.

Obama, speaking a day after elections that swept Republicans to a majority in the Senate, listed the military authorization as one of the items he wants from lawmakers before the next Congress is sworn in in January.

“It’s time for us to take care of business,” Obama said today at a White House news conference. He didn’t offer any details about the authorization he will seek.