Crunch Time for Defense Authorization and Military Detention

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The Senate and House conferees on the 2012 National Defense Authorization Act issued their compromise version of the bill late Monday night. That means it’s crunch time for the controversial law and its provision requiring the military detention of terrorism suspects. The White House and liberal Senate Democrats are battling a coalition of centrist Senate Democrats and Republicans over the final form of the bill in the face of an Obama veto threat. But if you’re of the belief that it is wrong or dangerous to expand executive authority to indefinitely detain terrorism suspects the fight has nothing to do with you.

That’s because the White House is threatening to veto the bill not because it gives it more power to detain terrorism suspects, but because it limits some of the ways it can detain them. Those limits makes law enforcement and counterterrorism officials uncomfortable, and Presidents tend to be fairly responsive to the concerns of their spooks and cops. They tend not to be so responsive to human rights advocates, and while you can find a few officials at the White House willing to say they regret the increased authority to detain terrorism suspects indefinitely, the real focus of the fight is on the measure’s limits, not its excesses.

The bill has a tortured history. When the White House saw the first version, it came back to the author at the Senate Armed Services Committee, its chairman Michigan Democrat Carl Levin, with what the White House thought were reasonable fixes. Obama’s staffers came away with the impression that the fixes would be made. But in negotiations with Republicans, Levin’s staffers didn’t deliver, and the White House felt burned. In response it delivered a veto threat [PDF] saying, “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.”

Few were very convinced that the White House would follow through on the veto threat—nixing any bill that deals with defense in an election year is not something Democrats relish—and the language left some wiggle room. It was nearly irrelevant to the discussion that the Senate passed an amendment 99-1 saying, “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” But then the cops and spooks started to raise objections. Obama’s top counterterrorism official, the respected John Brennan, gave an interview on NPR reiterating the veto threat. And FBI chief Robert Mueller wrote Levin a letter [PDF] of complaint.

That forced Levin and his staff to scramble to loosen the restrictions on White House detention options in the bill. The result is what Ben Wittes has called “mush.” The bill still requires military detention in some cases, but then finds a variety of ways to say nevermind. Writes Wittes:

A watered-down version of the Senate’s mandatory detention provision remains in the bill [after the conference report]. (See Sec. 1022.) On the quickest of reads, it seems to apply only to those who are “members of” or “part of” (not supporters of) Al Qaeda and those associated forces that act in coordination with it or at Al Qaeda’s direction, not to the Taliban. It does not extend to citizens and applies to permanent resident aliens only for conduct in the United States to whatever extent the Constitution permits. And it contains the following new disclaimer: “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless of whether such covered person is held in military custody.” To put it simply, what has emerged is mush.

The key determinant in whether Obama actually vetoes the bill will be the reaction at the Justice department, where lawyers are reading new language issued by Levin and his allies. The conference report, which unveils compromise language between the House and Senate as they try to reconcile different versions of a bill, is nominally the last word from Congress before a vote. Justice’s opinion is expected, probably through a White House statement, later today.