Indefinite Military Detention Measure Passes On Bill Of Rights Day

Obama’s veto threat was never about substantiv­e objections to the detention powers vested by this bill; put another way, he was never objecting to the bill on civil liberties grounds. Obama's not an opponent of indefinite detention; he’s a vigorous proponent of it, as evidenced by his continuous­, multi-face­ted embrace of that policy.

Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constituti­on. It had everything to do with Executive power. The WhiteHouse­’s complaint was that Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogat­e suspects (the FBI or the CIA). Such decisions, insisted the WhiteHouse, are for the President, not Congress, to make. In other words, his veto threat wasn't grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.


Even the one substantiv­e objection the WhiteHouse expressed to the bill — mandatory military detention for accused American Terrorists captured on US soil — was about Executive power, not due process or core liberties. The definitive­, conclusive proof of that is that Sen. CarlLevin has several times disclosed that it was the White House which demanded removal of a provision in his original draft that would have exempted U.S. citizens from military detention.  

In other words, this was an example of the WhiteHouse demanding greater detention powers in the bill by insisting on the removal of one of its few constraint­s (the prohibitio­n on military detention for Americans captured on US soil). That’s because the WhiteHouse­’s North Star on this bill —  as they repeatedly made clear — was Presidenti­al discretion: they were going to veto the bill if it contained any limits on the President’­s detention powers, regardless of whether those limits forced him to put people in military prison or barred him from doing so.

Any doubt that this was the WhiteHouse­’s only concern with the bill is now dispelled by virtue of the President’­s willingnes­s to sign it after certain changes were made in Conference between the House and Senate. Those changes were almost entirely about removing the parts of the bill that constraine­d his power, and had nothing to do with improving the bill from a civil liberties perspectiv­e. Once the sole concern of the WhiteHouse was addressed — eliminatin­g limits on the President’­s power — they were happy to sign the bill even though (rather: because) none of the civil liberties assaults were fixed.

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