President Obama will sign into law a defense authorization bill that purports to expand his authority to indefinitely detain persons suspected of terrorism. The President initially threatened to veto the bill over objections to provisions that required military custody of detainees. The Obama administration argued it needed the flexibility to take both a military and a law enforcement approach to fighting terrorism. Republicans criticized the president as lacking a “consistent” policy on handling suspected terrorists.
Congress added waivers and exemptions that assuaged the president’s concerns about flexibility and ensured that Obama’s policy will remain inconsistent. Republicans asserted that military custody would assure a focus on obtaining intelligence, instead of evidence for a criminal trial. Both law enforcement and military officials opposed the bill and echoed support for flexibility. The bill seems to confer authority for endless detention, but the Supreme Court had already recognized a broad detention authority under the 2001 Authorization to Use Military Force.
If it wasn’t about consistency, why is Congress suddenly asserting a stronger role in making decisions about fighting war and trying criminals? Republicans feign concerns that Obama’s policies are making the country less safe. But given the recent string of assassinations of top al Qaeda leaders, there is little reason to doubt Obama’s effectiveness in fighting terrorism. Some in Congress think criminal trials, which might respect a terrorist’s rights, are somehow inherently dangerous. A recent New York Times article said criminal trials result in lower recidivism and lower costs than Guantanamo Bay’s military trials. The article also depicted life in super-max prison for the hundreds of terrorists convicted in Article III courts, most of them prosecuted by the Bush administration.
In spite of the successes of the law enforcement approach, Congress continue to resist the administration’s efforts to move detainees out of Guantanamo. President Obama, faced with a constant tug of war with Congress, seems to prefer targeted assassination of terrorists to capturing them and figuring out how to try them. Ask Anwar al-Aulaqi’s father about Obama’s “softness” in fighting terrorism.
If this dispute between the executive and legislative branches is about politics, then our leaders are no longer taking this war seriously. Republicans might think they can benefit by painting Obama as soft on terrorism. It’s no accident that Senator Mitch “Number-one-priority-is-making-Obama-a-one-term-President” McConnell uses the harshest rhetoric in criticizing the President’s national security policies.
If the war on terror winds down, the country may start looking back. As more facts emerge about the early years of the war on terror, some might worry about their culpability. There seems to be a push to legitimize the interrogation practices that clearly amount to torture. Senator Diane Feinstein recently discussed a forthcoming Senate report concluding that “coercive and abusive treatment of detainees in U.S. custody was far more systematic and widespread than we thought.”
During the fight over the defense bill, Obama seemed more concerned with preserving executive flexibility than civil liberties. Critics denounced Obama for ignoring civil liberties, but the bill doesn’t seem to change the status quo on detention. The 2002 AUMF declared war on al Qaeda and its allies, and the Supreme Court recognized that the laws of war allow nations to detain combatants during a war. The defense bill broadens the AUMF beyond those responsible for 9/11 to those who “substantially support” al Qaeda or “associated forces,” making this war seem even more endless.