White House Threatens to Veto War Provisions and Restrictions on Closing Guantánamo in Defense Bill

Two weeks ago, when the “peace dividend” that should follow the death of Osama bin Laden was hijacked by cynical lawmakers intent on using bin Laden’s death to expand the “War on Terror” by revising its founding document, the Authorization for Use of Military Force, passed by Congress the week after 9/11, and also seeking to endorse torture and to defend Guantánamo, I addressed these baleful developments in a hard-hitting article, entitled, No End to the “War on Terror,” No End to Guantánamo.

Earlier today I also cross-posted a memorandum sent to the House Armed Services Committee by the ACLU, the Center for Constitutional Rights, Human Rights First and 20 other organisations, urging the Committee not to support the reckless and unjustifiable expansion of Presidential war powers, as contained in a section of the 2012 National Defense Authorization Act (NDAA).

That article also included a link to an ACLU campaign page where US citizens can write to their elected representatives asking them to oppose these vile plans by warmongers drunk on their addiction to permanent war. I hope that anyone concerned will do so, as it is extremely important, but I’d also like to remind readers of other sections inserted into the NDAA, which deal with Guantánamo, as I also mentioned in No End to the “War on Terror,” No End to Guantánamo.

Surprisingly, high-level criticism of the section of the NDAA dealing with the revised AUMF and the administration’s Guantánamo policy has come from the White House itself. Yesterday, advisors to the President issued a Statement of Administration Policy threatening to veto three parts of the Act if they are not removed. Two of these, dealing with the F-35 Joint Strike Fighter, and the New START nuclear arms reduction treaty with Russia, are not of particular relevance here, but the third is, as it deals explicitly with the proposal to expand the AUMF, and also with aspects of the President’s policies regarding Guantánamo — specifically, his ability to transfer prisoners to the US mainland to face trials, his right to release prisoners to other countries without undue interference, his right to review prisoners’ ongoing detention according to his March 7, 2011, Executive Order (PDF), without interference from Congress, and his right to prosecute foreigners seized in connection with terrorist offences in federal court, also without interference from Congress.

As Politico noted, with the exception of the veto threat to the AUMF proposal, “There is a belated quality to the veto threat since Obama previously objected to but ultimately signed a series of bills which had provisions effectively blocking the closure of Guantánamo as well as trials for the alleged September 11 conspirators” — a reference to Obama’s capitulation in New Year to unconstitutional intrusions on his authority, which I discussed in my articles, With Indefinite Detention and Transfer Bans, Obama and the Senate Plumb New Depths on Guantánamo and Guantánamo Forever?.

I have no sympathy with the President regarding his claim that he can hold 48 prisoners at Guantánamo indefinitely without charge or trial, as advised by the Guantánamo Review Task Force, but the review process initiated in relation to these 48 men, announced in the executive order in March (and which I wrote about in my article, Guantánamo: Obama Turns the Clock Back to the Days of Bush’s Kangaroo Courts and Worthless Tribunals), is not something that will be improved by unnecessary Congressional interference.

Perhaps, with bin Laden’s death, and the political advantage that Obama has secured through it, the administration is actually prepared to fight back against unprincipled Republican critics — and critics within the Democratic party as well — who insisted, in the provisions they inserted into the pre-Christmas defense spending bill, that no Guantánamo prisoners can be transferred to the US mainland, and that it should be next to impossible to actually close Guantánamo. However, I will need more confirmation before ceasing to believe that, when it comes down to it, Obama will cave in, as he has done on almost every occasion that he has been challenged on issues relating to “national security.”

In an attempt to help readers understand what is at stake, I’m posting below the contentious sections from the NDAA (PDF, pp. 238-241), followed by the Obama administration’s criticisms.

Of particular importance are the conclusions reached by the presidents advisors, who stated:

If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.

Section 1034 — Affirmation of Armed Conflict with Al-Qaeda, the Taliban, and Associated Forces

This section would affirm that the United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note). This section would also affirm that the President’s authority pursuant to the Authorization for Use of Military Force includes the authority to detain certain belligerents until the termination of hostilities.

The committee notes that as the United States nears the tenth anniversary of the attacks on September 11, 2001, the terrorist threat has evolved as a result of intense military and diplomatic pressure from the United States and its coalition partners. However, Al-Qaeda, the Taliban, and associated forces still pose a grave threat to U.S. national security. The Authorization for Use of Military Force necessarily includes the authority to address the continuing and evolving threat posed by these groups.

The committee supports the Executive Branch’s interpretation of the Authorization for Use of Military Force, as it was described in a March 13, 2009, filing before the U.S. District Court for the District of Columbia [PDF]. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the Authorization for Use of Military Force, the Executive Branch’s March 13, 2009, interpretation remains consistent with the scope of the authorities provided by Congress.

The Obama administration’s criticism

The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion.

Section 1039 — Prohibition on the Transfer or Release of Certain Detainees to or within the United States

This section would prohibit the Secretary of Defense from using funds available to the Department of Defense for fiscal year 2012 to transfer or release certain detainees to or within the United States, its territories, or possessions. This prohibition applies to individuals detained at U.S. Naval Station, Guantánamo Bay, Cuba, and to individuals detained by the Department of Defense overseas pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note).

The Obama administration’s criticism

The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees. Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests.

It unnecessarily constrains our Nation’s counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best — or even the only — option for incapacitating dangerous terrorists. For decades, presidents of both political parties — including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush — have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence. The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts — a powerful tool that must remain an available option.

Section 1040 — Prohibitions Relating to the Transfer and Release of Certain Detainees to or within Foreign Countries

This section would prohibit the Secretary of Defense from using any of the funds available to the Department of Defense for the fiscal year 2012 to transfer or release individuals detained at U.S. Naval Station, Guantánamo Bay, Cuba, to or within a foreign country or any other foreign entity. This prohibition would apply unless the Secretary of Defense, in consultation with the Secretary of State, certifies to Congress at least 30 days prior to the transfer of any such individual, that the government of the country or the recognized leadership of the entity to which the individual would be transferred:

(1) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
(2) maintains effective control over each detention facility in which an individual is to be detained if the individual is to be housed in a detention facility;
(3) is not, as of the date of the certification, facing a threat that is likely to substantially affect its ability to exercise control over the individual;
(4) has agreed to take effective steps to ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future;
(5) has taken such steps as the Secretary of Defense determines are necessary to ensure that the individual cannot engage or reengage in any terrorist activity;
(6) has agreed to share any information with the United States that is related to the individual or any associates of the individual and could affect the security of the United States, its citizens, or its allies; and
(7) has agreed to allow appropriate agencies of the United States to have access to the individual, if requested.

This section would also prohibit the Secretary of Defense from using any funds for the transfer of any such individual to the custody or effective control of a foreign country or any other foreign entity if there is a confirmed case of any individual transferred from U.S. Naval Station, Guantánamo Bay, Cuba, to the same country or entity who engaged in terrorist activity subsequent to their transfer. The Secretary of Defense would be authorized to waive this additional prohibition if the Secretary of Defense certifies that such a transfer would be in the national security interests of the United States and certifies that the general requirements relating to other transfers or releases to foreign countries or entities described above have been met.

While this section does not prohibit the transfer of third country nationals detained at theater-level detention facilities in the Islamic Republic of Afghanistan, the committee believes that determinations as to the disposition of such individuals who continue to pose a threat to U.S. national security should be carefully reviewed and evaluated. This is of particular concern as primary responsibility for detention operations transitions to the Government of Afghanistan.

The Obama administration’s criticism

The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur. The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries.

Section 1036 — Process for the Review of Necessity for Continued Detention of Individuals Detained at Naval Station, Guantánamo Bay, Cuba

This section would require the Secretary of Defense to establish a review process to determine whether the continued detention of individuals detained at U.S. Naval Station, Guantánamo Bay, Cuba, is necessary to protect U.S. national security. This section would not affect the jurisdiction of any Federal court to determine the legality of detention of any individual detained at Guantánamo Bay.

The Obama administration’s criticism

Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order [PDF] by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests. It also unnecessarily interferes with DoD’s ability to manage detention operations.

Section 1042 — Requirement for Department of Justice Consultation Regarding Prosecution of Terrorists

This section would require the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division, to consult with the Director of National Intelligence and the Secretary of Defense before instituting any prosecution of an alien in U.S. district court for a terrorist offense.

The Obama administration’s criticism

Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.

Note: For those interested, these are the sections of the NDAA dealing with Guantanamo that did not attract a veto threat:

Section 1035 — Requirement for National Security Protocols Governing Detainee Communications

This section would require the Secretary of Defense to submit to the congressional defense committees a national security protocol governing communications of each individual detained at U.S. Naval Station, Guantánamo Bay, Cuba. The committee believes that all communications for such individuals should be reviewed for the protection of the Armed Forces and other personnel at Guantánamo Bay as well as to prevent the unauthorized disclosure of classified information.

Section 1037 — Prohibition on Use of Funds To Construct or Modify Facilities in the United States To House Detainees Transferred from Naval Station Guantánamo Bay, Cuba

This section would prohibit the Secretary of Defense from using any of the funds available to the Department of Defense for fiscal year 2012 to modify or construct any facility in the United States, its territories, or possessions to house any detainee transferred from U.S. Naval Station Guantánamo Bay, Cuba, for the purposes of detention or imprisonment in the custody or under the effective control of the Department of Defense.

Section 1038 — Prohibition on Family Member Visitation of Individuals Detained at Naval Station, Guantánamo Bay, Cuba

This section would prohibit the Secretary of Defense from using funds available to the Department of Defense for fiscal year 2012 for the purpose of allowing family members to visit individuals detained at U.S. Naval Station, Guantánamo Bay, Cuba.

Section 1041 — Counterterrorism Operational Briefing Requirement

This section would require the Secretary of Defense to provide quarterly briefings to the congressional defense committees outlining Department of Defense counterterrorism operations and related activities involving Special Operations Forces not later than March 1, 2012.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.