White House Threatens Veto on the Defense Authorization Act, Citing Detention and AUMF Related Provisions

By Robert Chesney
Tuesday, May 24, 2011, 5:16 PM

Very interesting.  The six-page Statement of Administration Policyrelating to HR 1540, the proposed National Defense Authorization Act for FY 2012, is here.  There are many objections, requests, and veto threats here, most of which concern matters beyond the scope of this blog.  But then on page 2 we have this:

Detainee Matters:

The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion.

The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees.

Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. It unnecessarily constrains our Nation's counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best – or even the only – option for incapacitating dangerous terrorists. For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence. The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.

The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur. The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries.

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.

Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.

If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.

I'm not surprised to see push-back on the transfer and prosecution-related provisions, and indeed am very happy to see that pushback.  This is, I think, the first time the Administration has done more (in public at least) than bluster about legislative interference with executive branch discretion in these area.  Perhaps the success of the UBL operation has left the White House with the sense that it has a bit more credibility on these matters than before, a bit more leeway to insist upon options other than detention at GTMO?  

But the real story here is the opening objection to section 1034, which proposed a fresh AUMF specifying al Qaeda, the Taliban, and associated forces as the objects of the authority to use military force.  [SECOND UPDATE: A friend points out that the veto threat in the final paragraph above could very well be read to refer only to the complaints relating to transfer, prosecution, and the rest, but not to the first paragraph dealing with the AUMF.  The idea is that the threat specifies a veto responding to the "provisions that challenge critical Executive branch authority" and, arguably, the AUMF dispute is not of that ilk.  That's could well be what the White House intended to signify.] On one hand, the opening line of that paragraph seems to endorse the view of those who fear that the new language would mark a substantial expansion of existing authority.  On the other hand, the second sentence signals a willingness to go with a new AUMF after all should it seem worth pursuing after "more extensive consideration."  What to make of this?  Well, I think that the White House is on to something here insofar as the aim is to spark a more serious conversation about just which entities ought to be the objects of authorized force.  Let me explain. The proposed AUMF language explicitly refers to (i) al Qaeda, (ii) the (Afghan) Taliban, (iii) associated forces engaged in hostilities against the US or its coalition partners, and (iv) those individuals, entities, or states that support groups in the first three categories.  Consider each of these in sequence.

(i) Al Qaeda - There is no harm, in my view, in actually naming al Qaeda as an object of authorized force. Is there a need to actually do so, given that the existing AUMF is widely understood to encompass AQ anyway?  Not a pressing need, no.  What about the fact that there are huge definitional/boundary issue when it comes to saying what we mean by AQ?  The problem is made no worse or no better by this change. 

(ii) The Afghan Taliban -- There is no harm in actually naming the Afghan Taliban, and actually some real benefit.  The Afghan Taliban is covered under the existing AUMF on the ground that it harbored AQ...but one might argue today that it is less clear that this rationale still applies.  So long as we actually are fighting them, why not say so directly? 

(iii) Associated Forces Engaged in Hostilities -- On one hand, there is a great deal to be said about adopting language that makes clear the domestic legal foundation for use of force against entities like the Haqqani Network, which actually are engaged in combat with us in the Af-Pak theater but which are not clearly encompassed by the original AUMF.  As things stand, the general idea as I understand it is that we consider either the AUMF or Article II itself to confer authority to fight against any group that emerges as a co-belligerent literally joining in the fight against our soldiers.  That's reasonable enough, but I can certainly see the argument for adopting express statutory language to encompass this scenario. But of course the Haqqani Network example is not the only scenario that might be encompassed by this language.  What about AQAP, al Shabab, and other like-minded or co-branded entities linked to AQ but not necessarily part and parcel of it (to be clear, I don't mean to take a position here on which of these groups are truly separate and which aren't; I'm hardly in the best position to weigh in on that in any event)?  The associated forces language might also reach such groups, or even wholly distinct entities such as Lashkar.  Should it do so?  I think that's a really hard question.  It may be that it better to draw the statutory circle narrowly, with language making clear that the narrow framing does not signify an intent to try and restrict the President's authority to act when necessary against other groups in the exercise of lawful self-defense.  I'm just not sure, nor am I sure how easy it would be to frame language more specific than that used in the existing AUMF proposal. All of which leads me to think that it is indeed a good idea to engage in "more extensive consideration" on this point, as the White House statement suggests.

[UPDATE: A friend points out that my comments here might seem in tension with a quote I gave to NPR yesterday on Morning Edition.  My quote there was meant to cover the Haqqani Network scenario, which as I say here in this post is indeed a scenario that ought to be expressly rather than just implicitly covered by statutory authorization.  Here's the quote:

"Groups like that, that are not in any way encompassed by the original AUMF by its own terms, but that very clearly are engaging in combat operations against our soldiers in Afghanistan — of course we should have a clear legal foundation for fighting back against them," Chesney says 

In the NPR piece I did not have the chance to address the other scenarios I talk about above in this post, such as al-Shabab or Lashkar. As I say above, those are harder cases presenting different issues, and we could definitialy do with some more discussion of them.]  

(iv) Supporters - Of course I saved the best for last.  The most subtle yet potentially-far-reaching portion of the proposed AUMF language is the opening language reference entities or states that support the aforementioned three categories.  Suffice to say that this is probably the most alarming part in the eyes of critics, and it could certainly do with further consideration as well.