President Obama has threatened to veto the 2012 National Defense Authorization Act (NDAA) if it includes, as the House bill does, an effort to update the 2001 Authorization for the Use of Military Force to create a virtually open-ended war against anyone deemed to be a terrorist regardless of connection to Al Qaeda or the attacks of September 11. The ACLU delivered the news first.
In their Statement of Administration Policy, the White House enumerates several objections to the House version of the NDAA. But only three drew a veto threat: 1) the adding back of funding for a second engine for the F-35 Joint Strike Fighter, a zombie appropriation that will seemingly never die; 2) Sections 1055 and 1056, which would put limits on implementation of the New START nuclear arms reduction treaty with Russia; and 3) the matters relating to detainee treatment and the war on terror. I will just excerpt the SAP on this point:
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.
So this is talking about restricting funds for the release of detainees at Guantanamo, and the periodic review involved in keeping detainees there. This has been the line for some time, and yet the President signed multiple bills with restrictions on funding for closing Guantanamo and transferring detainees in the past. What’s new here is the veto threat for the AUMF update. Here’s a Congressional Research Service report on what Section 1034 would precisely do:
Section 1034 “affirms” that the United States is “engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad.” It further affirms that the President is authorized to use all necessary force during the armed conflict pursuant to the AUMF, and that and that the armed conflict includes:
nations, organizations, and persons who–
“(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
“(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A).
Section 1034 further affirms that the President’s authority under the AUMF includes the authority to detain belligerents, including persons described above, until the termination of hostilities.
Supporters of the provision contend that it merely confirms the armed conflict as it has evolved since the enactment of the 2001 AUMF and places Congress’s imprimatur on the executive branch interpretation of the authority that resolution conferred by adopting the same phrase the government has put forth—and which the U.S. Court of Appeals for the D.C. Circuit has accepted—in habeas litigation involving Guantanamo detainees. Opponents of the provision view the inclusion of “associated forces,” without an express repetition of the AUMF requirement that force be employed only against those nations, organizations, or persons with a certain nexus to the 9/11 terrorist attacks, as authorizing an expansion of the armed conflict to cover any new terrorist threat that may arise.
Endless war and indefinite detention.
As it happens, several members have offered amendments to the NDAA that would either limit or strike Section 1034. There’s a bipartisan amendment from Justin Amash, Ron Paul, Walter Jones, Barbara Lee, John Conyers and Jerrold Nadler to eliminate the section. And an amendment from John Garamendi would terminate Section 1034 after three years. There’s a Rules Committee meeting happening at this hour to determine what amendments will get a floor vote. Over 200 amendments have been offered.
The Administration said nothing about Afghanistan in its SAP, which isn’t surprising because they want to retain the ability to direct the war as they see fit. In a way that’s what’s behind the veto threat of Section 1034 as well. But there are several amendments that would call for sizable reductions of troops in Afghanistan, mandate a withdrawal, affirm no permanent bases in Afghanistan, reduce the military commitment to Afghanistan consistent with the McGovern-Jones bill, limit funds for Afghanistan to a counter-terrorism mission, and reduce force size to 25,000 by the end of 2012. It’s likely that at least one of those amendments will reach the floor for a vote. Here’s part of Rep. Garamendi’s remarks to the Rules Committee on hearing his amendment:
In the face of an ongoing international terrorist threat and economic challenges at home, it is time to shift from a broad counterinsurgency campaign in Afghanistan to a laser-like focus on combating terrorists wherever they exist. Maintaining 100,000 troops in a country the size of Texas, at a cost of $10 billion a month, is simply not an effective way to fight a global and decentralized enemy, and drains our resources when we need them most. Instead, we must maintain a laser-like focus on Al Qaeda and other terrorists, tracking them down wherever they try to establish roots, and we must redirect our resources toward building up our own nation, investing in the kinds of programs that will sustain our leadership in the global economy. After nearly a decade of war, costing substantial blood and treasure, the U.S. public is ready for this shift. Members of Congress need to be as well.
But the big news here is the veto threat over Section 1034.