Executive Power

White House Threatens Veto of NDAA

By Robert Chesney
Wednesday, June 12, 2013, 10:51 AM

OMB has issued a Statement of Administration Policy (SAP) pointing out White House objections to various elements in pending NDAA legislation (H.R. 1960, the HASC NDAA FY'14 bill), and threatening to veto the legislation if changes are not made.  There are, of course, many different points of contention.  I'll highlight two sections of the SAP that may particularly interest Lawfare readers:

Guantanamo and Parwan

Detainee Matters: The Administration strongly objects to sections 1032, 1033, 1034, and 1035, which unwisely and inappropriately interfere with the Executive Branch's ability to manage detainees in a time of armed conflict. The President has repeatedly objected to the inclusion of these and similar provisions in prior versions of this law and has reiterated his call on Congress to lift the restrictions, most recently in his address to the Nation at the National Defense University.

Sections 1032, 1033, and 1034 are substantially similar to provisions found in the National Defense Authorization Act for Fiscal Year 2013 and to provisions found in previous years' defense appropriations bill and other legislation. They would continue unwise funding restrictions that would prohibit the construction or modification of a detention facility in the United States to house Guantanamo detainees, and would constrain our ability to transfer Guantanamo detainees, including those who have already been designated for transfer to other countries. Operating the facility at Guantanamo weakens our national security by wasting resources, damaging our relationships with key allies, and reinforcing propaganda used by al-Qaeda to attack the United States and our values. Prohibiting the transfer of detainees to the United States and restricting the transfer of detainees to the custody or effective control of foreign countries or entities in the context of an ongoing armed conflict may interfere with the Executive Branch's ability to determine the appropriate disposition of detainees and to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur. In addition, the restrictions in sections 1033 and 1034 could, in certain circumstances, violate constitutional separation of powers principles. They are also completely unnecessary. Even in the  absence of these restrictions, the Administration has worked – and in the future would work – to  ensure that any country receiving a detainee would take appropriate security and treatment measures if any detainee is transferred.

Section 1035 purports to require the Secretary of Defense to publicly release unclassified summaries containing information about detainees at Parwan determined to represent an enduring security threat to the United States no later than 120 days after the bill's enactment. This provision would intrude on the President's constitutional authority to maintain the confidentiality of sensitive national security information. The Administration urges that the provision be deleted or revised to make clear that public disclosure of this information is encouraged, but not mandatory.

Defense Clandestine Service

The Administration strongly objects to section 923, which would restrict the implementation of the DCS. The Administration remains committed to working with the Congress to resolve its need for additional information on DCS but should not be limited to defense priorities in the implementation of this important intelligence collection program.