Detention: Law of

Veto Threat Whiplash

By Benjamin Wittes
Tuesday, May 24, 2011, 6:02 PM

I confess that I'm a bit bewildered by the aggressiveness of the Statement of Administration Policy on the NDAA--about which Bobby just posted. As Bobby notes, the administration seems to be threatening a veto not only over the transfer restrictions, a matter on which I am entirely sympathetic but about which the administration has not been willing to veto legislation in the past. It is also threatening a veto over parts of Rep. Buck McKeon's bill that are essentially salutary in concept--though needing work in practice. Specifically, the administration is objecting to McKeon's AUMF language, as Bobby discussed, and it is also objecting to his efforts to codify a Guantanamo review process:

Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests. It also unnecessarily interferes with DoD’s ability to manage detention operations.

The problems with McKeon's AUMF language is a matter of tweaks. His bill largely codifies the administration's existing positions. There is not remotely enough daylight between the two parties here to warrant more than a quiet dialog to address whatever concerns the administration may have about how McKeon's language would "effectively recharacterize [the conflict's] scope." I agree with Bobby that there are some issues to discuss, but this is not the stuff of veto threats. It is the stuff of picking up the phone.

The differences over the review process are more substantial--and the administration is certainly right to push back in favor of its own policy preferences regarding the review process's contents. The trouble is that McKeon's proposal here has a very good idea at its core: Codifying the review process itself in law. And the administration's statement doesn't even recognize that as a salutary policy goal on which the legislature and the executive share a common interest. In other words, the administration should be fighting over the contents of the legislative review process, not the fact of it, and the statement does not make this distinction at all.

The administration, in short, has gone from being unable or unwilling to join battles over detainee matters to being unable or unwilling to pick its battles. That's a shame.

This failure, of course, may just be a negotiating tactic: Threaten to veto it all and then settle for the stuff that is actually helpful--or at least not hurtful. I'm not a legislative strategist and wouldn't even resist the idea that this  may be sound legislative negotiating. That said, the SAP does not reflect good policy. It reflects a knee-jerk reaction to a proposal with both good and bad elements.