Guantanamo: Legislation

Why No Veto Threat Here?

By Benjamin Wittes
Tuesday, May 31, 2011, 6:04 PM

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration's recent veto threat with respect to the McKeon legislation. Yet oddly, this time, there is no veto threat. The provision in question reads:

SEC. 537

None of the funds appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions, including detaining, accepting custody of, or extending immigration benefits to, Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

The White House statement reads in relevant part:

The Administration also has a number of serious constitutional concerns.  The Administration strongly objects to the provisions of section 537 that limit the use of funds to transfer detainees and otherwise restrict detainee transfers.  Although the Administration opposes the release of detainees within the United States, section 537 is a dangerous and extraordinary 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 the Nation's counterterrorism efforts and would undermine national security, particularly where Federal courts are the best – or even the only – option for incapacitating dangerous terrorists.  For decades, presidents of both political parties have leveraged the flexibility and strength of this country’s Federal courts to incapacitate dangerous terrorists and gather critical intelligence.  The prosecution of terrorists in Federal court is an essential element of counterterrorism efforts – a powerful tool that must remain an available option.

The Administration strongly opposes any inclusion of ideological and political provisions that are beyond the scope of funding legislation.   Should the Congress continue to include language that is not relevant to a funding debate, the Administration will oppose the bill (emphasis added).

Contrast that with the relevant language from the Statement of Administration Policy on H.R. 1540, the proposed National Defense Authorization Act for FY 2012:

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.

. . .

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 (emphasis added).

I can think of two possible explanations beyond mere clerical error: First, and I certainly hope this is not the explanation, perhaps the administration is backing off the veto threat. Second, perhaps the transfer restrictions with respect to domestic civilian trials are only veto-worth in combination with the other (from the administration's point of view) objectionable features of the McKeon bill but are on their own merely worthy of opposition.

In any event, it's a little puzzling.