Detention: Law of: Legislative Development

White House Statement: No Veto on NDAA

By Benjamin Wittes
Wednesday, December 14, 2011, 4:38 PM

The White House has issued the following statement announcing that--and why--it will not veto the NDAA:

Statement from the Press Secretary on the NDAA Bill 
We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.
As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems. 
Background on Changes 
Softening the “requirement” for military custody:

  • The word “requirement” was removed from the title of the provision that purports to require military custody for certain terrorists.
  • Added a paragraph to the military custody provision that clearly states that “[n]othing in [it] shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”   

Providing the President additional discretion over implementation:

  • Provided the President with the authority to develop implementing procedures for Section 1022, which purports to require military custody of certain terrorists.  Among other things, this provides the President with additional discretion to minimize the impact of the provision on counterterrorism operations, and in some cases to limit the application or implementation of the requirement to place individuals in military custody.
  • Provided the President with discretion to ensure that ongoing interrogations are not disrupted by this provision, stating in the conference report that he can decide when these determinations need to be made and when and how they are to be implemented.  

Increasing the flexibility of the waiver process:

  • The waiver authority was transferred from the Secretary of Defense to the President, who can delegate that authority to those individuals who are positioned to make these judgments and to do so in a way that will minimize the disruption of counterterrorism operations. 

Ensuring that we track current law and minimize risks associated with legislating on AUMF:

  • Made our requested modifications to the provision that codifies military detention authority under the September 2001 Authorization for Use of Military Force.  Though this provision remains unnecessary, the changes ensure that we are merely restating our existing legal authorities and minimize the risk of unnecessary and distracting litigation. 

Removed Provisions in the House Bill:

  • The conference report does not include language from the House bill that would have eliminated our authority to use our federal courts from our counterterrorism arsenal.