5 Quick Thoughts on the White House Decision Not to Veto Detainee Measure

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When the Supreme Court eventually rules on the constitutionality of the new law, you'll hear politicians screaming their dissent.
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The White House announced Wednesday afternoon that it would not, after all, veto the pending defense bill over its controversial new terror detainee provisions. From the Associated Press:

The White House on Wednesday abandoned its threat that President Barack Obama would veto a defense bill over provisions on how to handle suspected terrorists as Congress raced to finish the legislation. Press secretary Jay Carney said last-minute changes that Obama and his national security team sought produced legislation that "does not challenge the president's ability to collect intelligence, incapacitate dangerous terrorists and protect the American people."

Here are five, quick thoughts about this important moment in constitutional history.

1. This is textbook stuff. What happened this week to the 2012 National Defense Authorization Act is straight out of political science or constitutional law class; the tyranny of the majority having just imposed itself upon a minority. The two popularly-elected branches of government this week have collaborated on a new law that likely infringes upon the core constitutional rights of U.S. citizens -- the right to due process as determined by a federal civilian court judge. And it will now be up to our independent judiciary to determine whether this effort is legal or not. What a great teaching tool this story has become -- let me know, all you teachers and professors out there, if you ever build a class or course around the topic.

2. The buck has been passed. Four years from now, maybe more maybe less, when the United States Supreme Court rules on the constitutionality of the new law's detainee provisions, you will hear politicians screaming their dissent. "Activist judges," some of these elected officials will cry! "Untethered judiciary!" This will occur because the Court now has to do its best to interpret the purposely ambiguous statutory language contained in the new law. Indeed, our national lawmakers have just failed to do what federal judges everywhere prayed they would; enact clearly-worded legislation. I'm not the only one frustrated by Congress' continuing failure to do its job -- so is Justice Antonin Scalia, who wrote this screed on legislative ambiguity this past June.

3. Rolling the dice. Both sides in this fight are gambling that the federal courts will see things their way. Senators John McCain, Lindsey Graham and Joe Lieberman -- who favor military detention for U.S. terror suspects apprehended here in the States -- are hoping that federal judges, and the justices in Washington, will rule that Congress and the White House have the authority to limit individual liberties in the fashion contemplated by the new law. The White House would take that deal, of course. But it also wouldn't mind a ruling from the High Court that simply protects the rights of the executive branch to prosecute American terror suspects in federal civilian courts. On that point, the Obama Administration has been fighting with Congress (morosely and unsuccessfully) since 2009.

4. Changed faces. Seven years later, the Supreme Court is very different from the one which issued the seminal ruling in Hamdi v. Rumsfeld in June 2004. That decision, which will be front and center as the new law makes its way through the courts, limited the Bush Administration's ability to hold terror detainees indefinitely without due process. The opinion, which came from a 5-4 vote, was written by Justice Sandra Day O'Connor, who has since been replaced by Justice Samuel Alito. As the latter heads toward his fifth year on the High Court bench it is clear in many ways that he is much more conservative than was his predecessor. This means, as everyone now knows, that the center of gravity on the Court has shifted to Justice Kennedy. For the record, he voted with Justice O'Connor in Hamdi.

5. What happens now. It is going to be years before civil libertarians know for sure whether the new law is constitutionality valid. Some person out there is going to have to get arrested or apprehended on U.S. soil, be accused of being a terror suspect, and then treated in the manner contemplated by the new law. That person is going to have to challenge the terms of detention and confinement. All of this will take years. In the meantime, one or two or three more Defense Authorization bills are going to pass through the Congress, each of them giving lawmakers a chance to back away from these provisions -- or add clarity to them. We are, after all this time, still much closer to the beginning than to the end of this dirty business.

Image credit: Chris Keane/Reuters


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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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