President Obama’s possible veto of Levin/McCain
Most media discussions of Levin/McCain assert that President Obama has threatened to veto it. That is not quite true: the White House’s statement on this bill uses language short of a full-on veto threat: “the President’s senior advisers [will] recommend a veto.” Moreover, former Bush DOJ official Jack Goldsmith makes a persuasive (though not dispositive) case that it is unlikely that the President would veto this bill. Most likely, it seems to me, is that the veto threat will be used to extract concessions in order to have a bill that the President will sign.
Let’s be very clear, though, about what the “veto threat” is and is not. All things considered, I’m glad the White House is opposing this bill rather than supporting it. But, with a few exceptions, the objections raised by the White House are not grounded in substantive problems with these powers, but rather in the argument that such matters are for the Executive Branch, not the Congress, to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power. They are not arguing: it is wrong to deny accused Terrorists a trial. Instead they insist: whether an accused Terrorist is put in military detention rather than civilian custody is for the President alone to decide. Over and over, the White House’s statement emphasizes Executive power as the basis for its objections to Levin/McCain:
Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa’ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.
It’s certainly possible that the administration is simply offering these Executive Power arguments as a fig leaf to hide their more politically difficult substantive objections to expanding the War on Terror. But that seems unlikely in the extreme, given that — as I have documented — most of these powers are ones expressly claimed and used already by the Obama administration. Does anyone believe that the same President who kills his own citizens without a whiff of due process or transparency is suddenly so concerned about the imperatives of due process? Indeed, Marcy Wheeler has repeatedly suggested that, in some important respects, Levin/McCain could actually limit Executive Power beyond what the Obama DOJ has seized, and for that reason, has mixed feelings about the Udall amendment to remove it:
As I have repeatedly described, I have very mixed feelings about the debate over Detainee Provisions set to pass the Senate tonight or tomorrow. I view it as a fight between advocates of martial law and advocates of relatively unchecked Presidential power. And as I’ve pointed out, the SASC compromise language actually limits Presidential power as it has been interpreted in a series of secret OLC opinions.
I’m willing to believe that there is genuine White House opposition to having the military detain and imprison U.S. citizens on U.S. soil, and that’s commendable if true (though it’s a sign of just how extremist our government is that we’re grateful for that). Indeed, the Obama administration has opted for civilian trials for accused Terrorists captured on U.S. soil (outside of Padilla, so, too, did the Bush DOJ, and even Padilla was eventually charged). But by and large the White House’s objections are not to these powers but — explicitly — to the idea that Congress rather than the President can dictate how they are exercised. The White House isn’t defending due process or limited war; it’s defending broad Executive prerogatives to prosecute the war without Congressional interference.
In that regard, the “debate” over this bill has taken on the standard vapid, substance-free, anti-democratic form that shapes most Washington debates. Even Democratic opponents of the bill, such as Mark Udall, have couched their opposition in these Executive Power arguments: that it’s better for National Security if the CIA, the Pentagon and the DOJ decides what is done with Terrorists, not Congress. In other words, the debate has entailed very little discussion of whether these powers are dangerous or Constitutional, and has instead focused almost entirely on which of Our Nation’s Strong National Security Experts should make these decisions (one of the few exceptions to this is Rand Paul, who, continuing in his New-Russ-Feingold role on these issues, passionately argued why these powers are such a menace to basic Constitutional guarantees). In sum, the debate is over who in the National Security Priesthood should get to decide which accused Terrorist suspects are denied due process, not whether they should be.
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