Administration Has Means to Sustain Civilian Primacy without Veto
As we all wait to see whether Obama will follow through on his veto threat tied to the detainee provisions in the Defense Authorization, I want to make an observation.
The Obama Administration has the means–short of a veto–to sustain civilian law primacy even if this bill is passed. But they will not use it.
As Lindsey Graham and Carl Levin repeat over and over when defending the detainee provisions–the detainee provisions require the Executive Branch to come up with procedures to determine whether someone qualifies as a covered person.
Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
With (a)(2) being whether or not the detainee was a Covered Person:
The requirement [for military detention] shall apply to any person whose detention is authorized under 1031 who is determined–
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
Nothing in the bill allows Congress to override the procedures developed by the Administration; it only requires that Congress get a copy of them.
Which would seem to permit the Administration to issue the following procedures:
- The persons authorized to make determinations whether or not someone is a “Covered Person” are Article III jurors and/or jurists.
- The process by which it will be determined whether or not someone is a “Covered Person” will be a civilian trial.
That would seem to render the effect of the most noxious part of the detainee provisions minimal: rather than imprisoning convicted terrorists at Florence SuperMax, those terrorists will be detained at Leavenworth. But they won’t be transferred to military custody until after they get a civilian trial.
They won’t do this, mind you, not just because it would make the Republicans go apeshit and would tie their hands. But they like the power that comes from the ability to make up this shit as they go along, and would never put in writing that courts must be involved. (Indeed, today Jeh Johnson repeated the Administration’s prior assertion that courts are not authorized to review the Administration’s targeting decisions.
But it would be a way to dispense with this crappy bill.
I don’t know if that would work, since a civilian jury can’t refer to military detention, which is another repartition of the bills requirement for covered persons, isn’t it?
Multiple stories coming out on the discussions today, where the headlines are that Jeh Johnson and Stephen Preston were busy saying that Americans can be freely assassinated by the exec branch if they are thought to be “at war” against the US. Nothing about the assassination of their children or other Americans traveling with them.
legal Times has some of the other input.
http://legaltimes.typepad.com/blt/2011/12/top-doj-national-security-lawyer-questions-military-detention-provision-.html. That includes their concerns about the required military detention (although no one seems to be talking about the impact on extradition, specifically.
I really like the references to the “pernicious” drumbeat of CIA criticism ( we should all be thankful for Americans killed by the CIA, be they children of missionaries or Muslim clerics) and Johnson’s preening about how much credibility the guys who just killed off two Pakistani bases as an oops and who have destroyed torture tapes and other evidences of crime, are garnering from th Bush bench.
And this or a future Administration could issue new rules, so I’m not seeing how this Constitutional abomination can be seen in anything even vaguely resembling a favorable light.
Really — how long would it be before protesters were declared to be ‘at war’ against the U.S.?
Less time than one thinks, remember how freely the Bu$hies tossed about “traitor” for those who didn’t agree with them. Or were Democrats.
Given how easy it is to commit election fraud with the voting machines beloved by Republicans, I see a coup coming. And the GOP will wreak vengeance.
I don’t think care if a law is passed helping jail Amerikans.
little jonny loo is alive and well
Depending on who’s in the WH and the DoJ, it might be done tomorrow. Cheney would certainly have been doing it; I’d bet he still has his personal list of people to be collected and disappeared. And the three-letter agencies undoubtedly have their own lists ready to go.
Wow… i always knew about and opposed the bush foreign policy and destruction of basic legal right for americans but i was just recently begining to understand how scary the obama administration is becuase nobody in the mainstream media bothers to talk about it. last month i discovered glenn greenwald, who began opening my eyes but it wasn’t until i found this blog (through i a link from his) that i became truly horrified by the direction of my country.
i always imagined the republicans as the warmongers and the dems as the pushover doves…. then i thought obama was letting the generals run wild becuase he didnt want the image of holding them back… now it seems like both the parties are warmongering and power hungry and crazy… and there is no viable third party!! it doesnt matter who we elect both sides want to strip away the right to the due process of law! and anyone who doesn’t is seen as a fringe candidate, a nut job.
scary movies have never frightened me (they’re just silly) but this is horrifing.
on a positive note i am really glad i found your blog. your posts are really really good. you are one of the few i have found that will actually follow and get into the meat of legislation.