In the space of a couple days, the US Senate was poised to essentially legalize indefinite detention and open up the possibility for US citizens to come under such a regime. The defense authorization bill included a provision requiring that any non-citizen suspected of terrorism be held in military custody, and opened the practice up to citizens as well. Invariably, those suspects would have to do to Guantanamo, where it costs $800,000 per prisoner annually for detention, 30 times more than it does a stateside prisoner. In fact, the provision mandated that the Secretary of Defense personally sign off on any tranfers out of Gitmo, significantly raising the political stakes. These are revised detention rules from an earlier version, and they got 25 out of 26 votes on the Armed Services Committee.
It looked as if this would swiftly pass the Senate without much in the way of debate. Harry Reid threatened to keep the Senate in session over Thanksgiving to get the bill passed. “We have to finish that bill now,” Reid said. “If we have procedural obstacles on that very important legislation, it’ll mean we have to work the weekend and into next week.”
Well, the Obama Administration just created an obstacle. They formally threatened a veto of the defense authorization bill, the vehicle for this, if the detention provisions remain.
The administration’s statement harshly criticizes the bipartisan Senate compromise hammered out by the Senate Armed Services Committee, noting that rather than take out provisions that critics warned would impede the ability of law enforcement agencies to investigate and apprehend terrorism suspects, the committee’s revised language merely “directs the President to develop procedures to ensure the myriad problems that would result…do not come to fruition.”
“Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al Qaeda and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.”
Defense Secretary Leon Panetta agreed with this take, saying in remarks earlier in the week that the detention provisions would harm national security.
Some Democrats have indicated that they would try to amend the detention portions on the floor, like Sen. Mark Udall (D-CO). He can now say that, without the amendment, the bill will have no chance of becoming law (although that might not be the case, there may be enough support in the chamber for a veto override). And there’s still the issue of getting the bill through a conference committee with the House. The House version of the defense bill includes a ban on military chaplains performing same-sex marriages, and House Armed Services Committee chair Buck McKeon has said he would rather let the bill die entirely than give up on that rider.
Marcy Wheeler reacted to the veto threat:
The response is a mixed bag. I’m grateful that the President thinks it’s a bad idea to have the military patrol our streets, particularly on days when a bunch of men who look and act like the military are cracking down on First Amendment activities.
But at the same time, one of the Administration’s complaints here is that Congress wants to impose a definition of detainee on them, when they’ve had OLC do so already in secret. Given that the latter is probably more expansive, it seems that may be why they want to keep it that way.
So it’s a stance against the increasing militarization of the courts. But a squishy self-serving one.
In this day and age, squishy and self-serving positive developments are sometimes the only positive developments around.