New White House rules claim authority to handle prisoners on a case-by-case basis and push back hard on Congress's micromanagement of the war on terror.
The White House chose Tuesday night at 6:30 p.m. -- just as the network news shows were beginning, just as the Arizona and Michigan primaries were winding down, just as federal lawyers were moving toward a plea deal with a high-profile Guantanamo detainee -- to remind the world that the Obama Administration does, indeed, have its limits when it comes to permitting Congress to micromanage the legal aspects of the war on terror.
First came this "Fact Sheet," which details the policies and procedures the administration intends to employ the next time a suspected (non-citizen) terrorist is apprehended. Next came a blog post titled: "Following Through: Detention & Interrogation Consistent with our National Security, Our Laws, and Our Values." The purpose of both documents was to plant the executive branch's flag on legal ground hard won last year by the White House in the days and hours preceding the passage of the latest National Defense Authorization Act.
From the White House, there was this:
One section of particular concern in the bill was Section 1022, which would seek to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." Initially conceived of as a requirement for a group of suspected terrorists to be held in military detention, the Administration worked with Congress to obtain broader authority to interpret and implement the military custody requirement, and to waive its application in individual cases or categories of cases, to better preserve both our national security and our values.
Ben Wittes, over at his Lawfare blog, has done an excellent and accessible job of explaining how and why the new White House rules tamp down the worst legislative effects of Section 1022. Wittes writes: "Bottom line: The president has -- rightly in my view -- read this law virtually out of existence. This is not a breach of faith with Congress, which in negotiations with the administration, so watered the provision down that, as signed, it reasonably lends itself to this reading." Wittes explains further:
First, he has read his authority to waive the provision very broadly. He has both made clear that officials have the authority to waive it at any time with respect to individual detainees and has prospectively waived it himself with respect to several whole categories of suspects. Some of these categories are quite broad -- including, for example, any situation in which transferring someone to military custody might impair efforts to secure his cooperation or garner his confession. Offhand, it's actually a little hard for me to imagine too many cases that wouldn't fit comfortably within at least one of the preemptive waivers the president has already issued. I suspect that isn't an accident.
Wittes may not believe the newly stated White House procedures are a breach of faith with Congress. But they surely send a signal to Capitol Hill that the administration intends to continue the aggressive assertion of executive-branch power initiated by George W. Bush following September 11, 2001. Conservatives -- in both parties -- tried this past year to legislate away core executive-branch functions (for example, deciding which suspects would be tried in which forum). The "Fact Sheet" details how far they failed.
Scholars and journalists may argue over how differently the two administrations have handled the legal war on terror (with the exception of the "torture" issue and the use of drones, there isn't much of a distinction). But what has dramatically changed since January 20, 2009 is Congressional hostility toward the White House on the terror-law front. Whereas the Bush-era Congress (even after the midterm elections of 2006) generally sought to help expand the White House's power over detainees, the Obama-era Congress has sought to check it.
From precluding a civilian trial for Khalid Sheik Mohammed to blocking the Guantanamo Bay detainees from being transferred to the United States for trial to preventing the use of domestic prisons to house the detainees, Congress has persistently treated this White House as untrustworthy on terror law. This is so even as the president's drones kill Al Qaeda operatives and our Navy SEALs killed Osama bin Laden. Now that the White House has told Congress where it can shove its Section 1022, it will be interesting to see this election year whether and to what extent Congress decides to shove back.