Saturday, November 19, 2011

White House Objects to Detainee Provisions in Defense Authorization Bill

The White House on Thursday issued a statement objecting to certain provisions in the National Defense Authorization Act for Fiscal Year 2012, now before the Senate.

The Statement of Administration Policy objects to the detention provisions in S. 1867 as bad policy and as encroaching on executive authority.  In particular:

  • The White House objects to Section 1031 for codifying its detention authorities that the courts have already recognized under the AUMF.  "[F]uture legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people."
  • The White House "strongly" objects to Section 1032, which would mandate military custody for certain terrorism suspects, but not for U.S. citizens or lawful residents.  "[T]he provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests."
  • The White House objects to Sections 1033, 1034, 1035, and 1036 which restrict the transfer of detainees to a foreign country and restrict funds for transferring or detaining them within the U.S.  "The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. . . .  [The] ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military's ability to transfer its detainees as operational needs dictate. . . .  [And] Section 1035 conflicts with the consensus-based interagency approach to detainee reviews . . . which establishes procedures to ensure that periodict review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.  Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense."

The White House concludes with a veto threat.  The Senate takes the measure up again on Monday.

Recall that President Obama issued a signing statement on the current restrictions on detainee transfer, arguing that the restrictions interfered with the President's Article II authority, but stopped short of calling them unconstitutional.

SDS

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