Friday, December 2, 2011

White House Renews Objections to Detainee Provisions

White House Press Secretary Jay Carney announced today that the Obama Administration continues to object to the detainee provisions in the National Defense Authorization Act for Fiscal Year 2012, S. 1867.  "So our position has not changed."  He also renewed the veto threat.

The Senate overwhelmingly passed the bill earlier this week, after compromise language was added that said the bill did not alter existing law.  It's not clear that the language did much of anything.

The White House objects to the requirement in the bill that the government keep alien detainees in military detention, the prohibition on using funds to transfer detainees, among others.  Here's what Carney said today:

By ignoring these nonpartisan recommendations, including the recommendations of the Secretary of Defense, the Director of the FBI, the Director of National Intelligence and the Attorney General, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy.  So our position has not changed.  Any bill that challenges the President's critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisors to recommend a veto.

Senator Patrick Leahy and Assistant Attorney General Lisa Monaco, head of the National Security Division at DOJ, also voiced objections today, according to the Blog of the Legal Times.  Monaco spoke specifically about the military detention requirement, saying that it would undermine the executive's prosecutorial authority and tie the administration's hands in dealing with detainees.


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There is clearly much confusion over this bill which has created much anger that I hope you can please clarify the matter for me once and for all. Sec 1032(b) of S 1867 specifically exempts AMCITS and LPRs from military detention and,, thus,apparently, denial of due process, but, according to many irate writers on the internet, 1031 absolutely nullifies that exemption. From a strictly legal and constitutional standpoint, what is the actual situation? Lots of anger out there and I'm not sure if it is misplaced. Please elucidate. THANKS!

Posted by: JIm Delaney | Dec 3, 2011 7:54:02 AM


Sec. 1032.c.2.A - designation of persons to make these important distinctions under Law of War. Presto, here you have executive creation of procedures to ensure these people do this job properly and right.

Sec. 1032.c.2.B - statement that law enforcement and the military will not wear kid gloves with someone under reasonable suspicion if there is a larger or related operation in play or at stake. This is a responsible position to form with this paragraph of this law -- protection of existing provisions.

Sec. 1032.c.2.C - in cold reality there may actually be the need to interrogate prior to being able to establish an individual's true identity. Thus, it must be duly protected in statute.

Sec. 1032.c.2.D - means AMCIT and LPR civil liberties only exist to limits of U.S. territory; if they are held in foriegn detention. These individuals must, of course, be taken into custody in the unfolding of actual war. Any dubious foreign detention of U.S. nationals carries the threat of rebuke and excepting rogue states is entirely uncommon.

Sec. 1032.c.2.E - the actual cabinet secretaries and director must confer and sign off on every individual if there are national security interests at stake which must be protected at the expense of an AMCIT's or LPR's civil liberties.

One questions the patriotism of said AMCIT or LPR if their inconvenience was required to protect their country and they allege today here and now this law pertains to and will inconvenience them in the future.

It is dubious to make any such claim and these sections and this law are somewhat well constructed considering their preponderous requirements to address. Sec. 1031 and 1032 specifically pertain to the unfolding of actual war which is declared AND defined by the president.

At no point would any rational individual agree that the U.S. President, and/or his Secretaries of Defense and State, National Security Director, Military Theater Commander, and particular operational Commanding Officer present wherever a detained individual may be, would, by any way of intent, seek to abrogate that individual's right to due process if they were an AMCIT or LPR, wherever their location, unless there were legitimate and very true interests directly and presently at stake.

Sec. 1031.e -- This spells it out completely, this Sec. does not supercede any existing statute, etc.

Any questions?

Posted by: John S. | Dec 6, 2011 3:50:43 AM

Dear Professors,

I am eager to read your response to the President's decision to sign the National Defense Authorization Act. I have several questions that I hope you will address.

As you reported in earlier posts, not two weeks ago the White House Press Secretary reaffirmed the Executive's objection to several provisions, including Section 1032 mandating military custody for some terrorism suspects and Sections 1033 through 1036 restricting the Executive's power to detain and transfer detainees. The provisions I thought limit the Executive's power to collect intelligence and move detainees. Am I looking at these provisions the wrong way? Is this Congressional authorization and expansion of Executive power? Also, is it true that Section 1032 does not require military custody of U.S. citizens and lawful residents suspected of terrorism?

Also, what is the significance now of the added compromise language?

Kenneth Roth, Executive Director of Human Rights Watch, said, “It is a sad moment when a president who has prided himself on his knowledge of and belief in constitutional principles succumbs to the politics of the moment to sign a bill that poses so great a threat to basic constitutional rights." What are the "politics of the moment"? Is this a twisted effort to secure Presidential re-election?

Thank you.

-- CUNY Law 2L and student of Professor Robson

Posted by: Kunal Sharma | Dec 15, 2011 5:37:11 PM

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