Obama Will Not Veto Defense Authorization

I said this about the detainee provisions in the conference Defense Authorization bill.

It seems to me the language does enough to avoid a veto from the cowardly Obama, but still does terrible damage to both the clarity of national security roles and overall investigative expertise.

And I was absolutely correct: Obama’s aides have announced he will not veto the bill.

Update: Here’s the specific language of the capitulation.

We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

Update: Here’s the roll call. the Dems split right down the middle, 93-93, which leads me to suspect Pelosi told Boehner the Republicans had to come up with the bulk of the yes votes, which might be why the House leadership had to stall on the vote for a period.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. nomolos says:

    Sad and not surprising.

    Unfortunately Michael Moore is correct when he says that the two parties represent the 1% and, believe you me, if I were one of the 1% I would be scared to death about what the 99% might do next. Bring on the drones…

  2. MadDog says:

    OT – And speaking of rank Democratic stupidity, Ron Wyden, Democratic Senator from Oregon is another Repug’s cat’s paw:

    “Paul Ryan moves away from controversial Medicare reform plan

    Rep. Paul Ryan (R-Wis.) is moving away from his controversial plan to end traditional Medicare, putting forward a new proposal with Sen. Ron Wyden (D-Ore.) that would keep the federally funded program in place.

    The plan, which Ryan and Wyden plan to unveil Thursday morning, would give Medicare beneficiaries a choice between today’s Medicare and private health plans…


    …Although the change is a significant departure from Ryan’s earlier proposal, Wyden’s involvement could also muddy Democrats’ campaign message of preserving Medicare against the threat of privatization…”

  3. Philip Munger says:

    Rep. Adam Smith has sent this letter out, in response to constituents concerned about the Defense Auth Bill:

    Dear Colleague:

    One of the most important issues in the Fiscal Year 2012 National Defense Authorization Act (NDAA) involves detainee issues. I would like to take a moment to explain my position.

    First, the AUMF (Authorization for Use of Military Force) section in our bill, Section 1021, merely codifies current law. It specifically states, “nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” Quite simply, our courts will decide what the law is regarding detention of U.S. citizens.

    Second, any U.S. citizen detained under Section 1021 has the right under habeas corpus to have the legality of any such detention determined by our courts. The courts have also held that anyone detained under the AUMF at Guantanamo Bay, Cuba, also has habeas rights. We do not change these rights.

    Third, Section 1022, entitled, “Military Custody For Foreign al-Qaeda Terrorists” specifically excludes US citizens. It states, “the requirement to detain a person in military custody under this section does not extend to citizens of the United States.” It also states the requirement to detain under Section 1022 “does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”

    Fourth, we also codify periodic review for those being detained at Guantanamo Bay, now and in the future, which is an important procedure for those detained indefinitely as a threat to the United States under the law of war.

    Finally, I understand and respect the opinions of our colleagues who do not like the current law on this subject. I fought hard in conference to make sure that this bill did nothing to expand federal authority under the AUMF and succeeded in that effort. We need to protect our country but also preserve our values and due process rights in doing so.

    This bill needs to be passed. We need to make sure that our troops have the support they to protect our country and ensure national security.


    Adam Smith

    Ranking Member

    House Armed Services Committee

    Not sure what tro make of Smith’s assertions.

  4. emptywheel says:

    @Philip Munger: It codifies existing law. Which, according to the Admin, allows them to kill Americans they deem a significant threat of death or serious physical injury.”

    You tell me what to make of it.

  5. Philip Munger says:


    The apparatchik pushback seems to be that there is nothing in this legislation that endangers Americans or our basic sets of rights. I’ve gotten lots of tweets from Obama supporters this evening, linking to Smith’s statement. Smith’s seeming contention that this legislation does not endanger the basic structure of rights for citizens needs to be addressed soon. That’s what I make of it.

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