After its FBI Director told Congress that the revisions to the defense authorization bill did not satisfy his concerns with the bill, the White House issued a statement of Administration policy saying that they would not veto the bill, despite an earlier threat. Here’s the statement from the Press Secretary.
We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.” After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.
As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto. However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.
This is not totally surprising, but after the testimony of Mueller, there’s clearly some kind of split between the national security apparatus in the White House. Letting Mueller come out and say that, and then not issuing the veto threat really sells out the FBI Director.
The other part of this is that the changes do offer a variety of possible loopholes for the executive branch to carry out counter-terrorism policy as they see fit. Military custody is no longer “required” in the bill, and FBI policies are nominally preserved, though in a strange way that would seem to be impossible to implement. The President has a few extra pieces of discretion to take terrorist suspects out of military custody and into an interrogation process outside military purview. In addition, federal courts could still be used for terrorism cases.
Remember that the White House has little problem with indefinite military detention. They just want to be able to dictate when it gets used and on whom. So they obviously see enough flexibility here to carry out unconstrained intelligence gathering and detention policies.
The part at the end, where they hope and pray that Congress will go back and fix the bill if it ever becomes a problem, is just nonsense. And the bill overall is ripe for abuse. The White House simply didn’t want to take the political hit for vetoing a bill that “supports the troops.” And they weren’t aroused enough by the thought of indefinite military detentions to mount any serious opposition to it.
UPDATE: From Adam Serwer:
This morning I wrote that by making the mandatory military detention provisions mandatory in name only, the Senate had offered the administration an opportunity to see how seriously it takes its own rhetoric on civil liberties. The administration had said that the military detention provisions of an earlier version of the NDAA are “inconsistent with the fundamental American principle that our military does not patrol our streets.”
The revised NDAA is still inconsistent with that fundamental American principle. But the administration has decided that fundamental American principles aren’t actually worth vetoing the bill over.