Transfers, Releases & Resettlements

What is in the New NDAA, Why it Warrants a Veto, and Why it Probably Won't Get One

By Benjamin Wittes
Saturday, December 22, 2012, 9:36 AM

So what exactly is in the NDAA conference report that is prompting the agitation for a presidential veto? Here is a quick and dirty summary of "Subtitle D---Counterterrorism"---along with an explanation of why President Obama ought to veto the bill but probably won't. I've flagged in red the provisions that are actually a problem.

Section 1021 extends the authority to make rewards associated with combatting terrorism and requieres the secretary of defense to send a report to Congress on the subject.

Section 1022 declares that "No amounts authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2013 may be used to construct or modify any facility in the United States . . . to house any individual detained at Guantanamo for the purposes of detention or imprisonment in the custody or under the control of the Department of Defense unless authorized by Congress." This section, which exists already in current law, prevents the closure of Guantanamo by preventing the Defense Department from replacing it with any state-side facility.

Section 1023 requires that the Defense Intelligence Agency produce an anual report on recidivism by former Guantanamo detainees.

Section 1024---call it the Warsame provision---requires notification to Congress each time a suspect is detained on a U.S. naval vessel. It also requires, more generally, "a report on the use of naval vessels for the detention outside the United States of any individual who is detained pursuant to the Authorization for Use of Military Force."

Section 1025, which Bobby discussed here, requires prior notice to Congress of transfers of non-Afghan detainees from the Parwan detention facility at Bagram.

Section 1026, which Bobby also discussed, requires a report on recidivism among detainees released from Parwan.

Section 1027 bans the transfer of Guantanamo detainees to the United States. This provision, which also extends a requirement of current law, effectively prohibits federal court criminal trials of detainees (by preventing their being brought to the United States), and---like Section 1022---makes the Guantanamo closure impossible.

Section 1028 essentially extends the restrictions on overseas transfers of Guantanamo detainees, requiring a rigorous certification by the Secretary of Defense before a detainee can be removed from Guantanamo. I haven't read carefully this version side by side with current law, but it has at least one important difference: Last year's NDAA (see Section 1028) had two exceptions: The certification was not required where either a court order required a release, or where a preexisting pre-trial agreement in a military commission did so. This year's version leaves out the exception for military commission pre-trial agreements---though it does allow cooperation in the context of pre-trial agreements to inform assessments of detainee risk. This change is very bad news for at least one Sudanese detainee who is currently serving a military commission sentence following a pre-trial agreement (Sudan is listed as a state sponsor of terrorism, and the certification requirements demand that the SecDef certify that the country of transfer is not a state sponsor of terrorism---which he cannot do). It's also bad news, I would think, for all the men and women trying to establish military commissions as a viable tribunal: Congress is effectively telling detainee lawyers that you can't make plea deals with prosecutors---at least not deals that might promise your client's eventual release.

Finally, in the grand tradition of big-sounding statements that do absolutely nothing, Section 1029 responds to Hedges-like fears of domestic detention in last year's NDAA by stating that "Nothing in the Authorization for Use of Military Force . . . or the National Defense Authorization Act for Fiscal Year 2012 . . . shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws." That'll quell the controversy, I'm sure.

Most of this stuff is just noise, required reports and notifications, but a few of the provisions are highly significant and genuinely warrant a president veto. Ironically, the human rights groups that are clamoring for a veto are doing so largely on the basis that the bill, as Human Rights First puts it, would "carry forward burdensome and unnecessary Guantanamo transfer restrictions that hamper President Obama’s ability to close the detention facility," which "has long been a national liability and stain on American values." The Obama administration uses much the same rhetoric, but the rhetoric in my view misses the point. The problem with the transfer restrictions is less that they would prevent the Guantanamo closure than that they prevent reasonable dispositions of detainee cases and restrict executive flexibility in handling detainees for whom one wants all options on the table. 

Particularly now that material support charges are not available in military commissions, it is simply self-defeating to preclude federal court charges for some detainees. Some detainees should be transferred. Military commission prosecutors should be able to make plea deals without the fear that the legislature that so belligerently insists on the primacy of their tribunal will make liars out of them and prevent the government from honoring their commitments. I don't care if one does detention policy at Guantanamo, in Illinois,  or in Kelly Ayotte's living room, and I have long argued that President Obama should accede to Congress's preference for Guantanamo as the long-term site for counterterrorism detentions. That said, the provisions of this NDAA, and last year's, and the previous year's make good policy at Guantanamo impossible, even as they insist that detention can take place nowhere else. And they thus make it impossible for the administration to bring new detainees there---even as it has nowhere else to put them. So yes, Obama should veto the NDAA and demand a version of it that lets him be commander in chief and lets Guantanamo be something other than a Roach Motel (Detainees check in, but they don't check out!).

All that said, I doubt very much that Obama will actually veto the NDAA. Yes, his administration has threatened a veto---as it did last year. And yes, there's a lot of agitation in his political base for a veto---as there was last year. But the problem is---once again---competing priorities. First, Obama couldn't put his foot down about Guantanamo transfer restrictions because of health care politics. Then he couldn't do it because he needed other stuff in the NDAA. I just don't believe that he really wants to drop a huge unrelated bomb in the midst of the fiscal cliff negotiations---which already have a lot of moving parts---by vetoing a bill that, largely, just extends a failure for which he has already paid the price politically. Put differently, I don't think he cares enough either about detention policy or about Guantanamo to risk compromising his position over them in the core battles he is fighting with the legislature. I'm not even sure he should do so; that is, if I were whispering in his ear and not advising him specifically about detention policy, I might very well tell him this is not a fight he can afford to pick right now.

I'd love to be proven wrong about this. But I suspect that Obama will back down.