5-25-2011By Daphne Eviatar
Senior Associate, Law and Security Program
Cross-posted from The Huffington Post
As Rep. Buck McKeon and fellow House Republicans on Tuesday continued to press for new and expanded war authority, the White House issued a rare threat to veto any legislation that would needlessly expand the war on terror and restrict the Obama administration’s ability prosecute suspected terrorists as top law enforcement officials see fit.
In a six-page “Statement of Administration Policy,” the Obama Administration criticized the bill’s new Authorization for the Use of Military Force because it “would effectively recharacterize [the war's] scope and would risk creating confusion regarding applicable standards.”
McKeon and his supporters had argued that the bill, proposed as part of the National Defense Authorization Act, would merely update the 2001 AUMF to bring it into line with the administration’s current position on the war’s scope. He argued that was necessary to keep “our men and women in uniform . . . on solid legal footing as they risk their lives in defense of the United States.”
As I’ve pointed out here before, however, the proposed new AUMF would sever the so-called “war on terror” from its original purpose, which was to respond to the September 11, 2001 terrorist attacks. The resulting authorization could have allowed the president to expand the war far beyond where it is today — even to attack Iran without prior Congressional approval. The Obama Administration apparently agreed that untying the connection to the 9/11 attacks, rather than placing U.S. soldiers on “solid legal footing,” would risk expanding the war beyond reasonable and lawful parameters, and made the bold move of saying so.
The Administration in the past has objected to war-related provisions it didn’t like by merely issuing signing statements expressing its disapproval, garnering criticism that the president wasn’t taking a strong stand. Here, the president has responded to that criticism by taking the extra step of threatening a veto on the war and detainee-related provisions, signaling the importance of these provisions and the president’s willingness to fight them.
In the same statement yesterday, the Obama Administration objected to the McKeon bill’s restrictions on the transfer of Guantanamo detainees to the United States for trial, calling it 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.” As I’ve noted previously, the Justice Department has been far more successful at investigating and prosecuting terrorism in the past than has the Defense Department, winning more than 400 terrorism convictions since 9/11, as compared to DoD’s six convictions in military commissions.
The Administration’s statement implicitly acknowledges that point, saying that the McKeon bill:
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.
The Administration’s statement goes on to object to the House bill’s efforts to restrict the transfer of Guantanamo detainees to other countries (and thereby make it impossible to close the Guantanamo Bay detention facility), and to require the Justice Department to consult with the Department of Defense before initiating terrorism prosecutions. This provision, the statement says, “would undermine, rather than enhance, [inter-agency] 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.”
The section of the statement on detainee matters concludes: “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.”