L.A. Liberty

A small correction

squashed:

Lawmakers back indefinite detention for terror suspects in US

The House of Representatives defeated a proposed amendment to the National Defense Authorization Act for Fiscal Year 2013 that would have required those detained in the United States to be tried in civilian courts. The amendment was supported by more liberal Democrats and more libertarian Republicans. The most prominent opposition to the amendment came from the rest of the Republicans.

Many of my more libertarian friends are at least as outraged as I am over current U.S. law involving detention. And it’s nice to see some principled Republicans breaking party lines on this one. But … I think we need to be clear on how the party lines are drawn.

* Nineteen Republicans opposed indefinite detention. Two hundred and nineteen supported it. On the Democratic side, the numbers were flipped. Nineteen opposed the amendment and one hundred sixty-three supported it. In other words, the Democrats overwhelmingly supported it and a few libertarians-leaning Republicans joined them. If you’re voting party-line Republican, this is one of the things your guys are supporting.

* The Obama administration has threatened to veto the law over concerns about the detainee provisions. We can anticipate that the administration will do the same thing it’s done in the past with veto threats. Specifically, Obama will get some better-than-nothing concessions and grudgingly sign the bill. It’s fine to be disappointed if the concessions aren’t enough—but if you end up voting for Romney, you’re voting for the guy who won’t even ask for that much.

* The judge who recently declared a portion of the 2012 NDAA unconstitutional was an Obama appointee. The judge the Republicans would appoint is likely to have a much more expansive view of executive power. (Yes, even applies to a judge Ron Paul would appoint. Unless Paul takes a personal interest in the judicial philosophy of every appointee, his role in selecting judges to be appointed likely gets delegated to the hangers-on. In other words, you get a run-of-the-mill conservative jurist.)

I fall into the category of libertarians who are outraged “over current U.S. law involving detention,” and I’m on board with the vast majority of this post.

However, I have to object to the bit about Obama’s supposed concern for the NDAA provisions for indefinite detention. First, after threatening to veto the original 2012 bill, he backed down and ultimately signed it into law. I don’t know how many concessions he got, but the bill was still really crappy on this issue. But, even if there was a good reason to cut him some slack on that, have you read his statement of objections to the detention provisions in the 2013 bill? I have, and they’re not what you portray them to be here.

I’ve written on the subject of the 2013 bill at length, but here I’ll try to be a bit more brief since we’re looking at just this one aspect, and in particular Obama’s objections. Here’s the actual text of his statement (only the relevant part about detention, and I’ve added paragraph breaks for readability):

Detainee Matters: The Administration strongly objects to sections 1035-1043, which would continue and in some cases expand unwise restrictions that would constrain the flexibility that our Nation’s armed forces and counterterrorism professionals need to deal with evolving threats.

Section 1035, which would prohibit any detainee who has been repatriated to Micronesia, the Marshall Islands, or the Republic of Palau from traveling to the U.S., is unnecessary and could undermine our relations with a friendly government whose citizens may serve in the U.S. military.

Sections 1036, 1037, 1038, and 1043 unnecessarily renew, supplement, or enhance the restrictions on the transfer of Guantanamo detainees into the United States or a foreign country. The Administration continues to strongly oppose these provisions, which intrude upon the Executive branch’s ability to carry out its military, national security, and foreign relations activities and to determine when and where to prosecute Guantanamo detainees.

Likewise, the Administration opposes the notice and reporting requirements in sections 1040, 1041, and 1042, which would unnecessarily complicate and potentially compromise military operations and detention practices – including aboard naval vessels at sea. These sections, like section 1039, would also greatly add to the military’s administrative burden.

Section 1041 is an unprecedented, unwarranted, and misguided intrusion into the military’s detention operations in a foreign combat theater during an active armed conflict. The reporting requirements seek to micromanage the decisions of experienced military commanders and diplomats, threaten to compromise the Executive’s ability to act swiftly and flexibly during a critical time for transition in Afghanistan, and could deter or jeopardize the success of effective foreign prosecutions.

Sections 1036, 1037, and 1041, moreover, would, under certain circumstances, violate constitutional separation of powers principles. If the final bill presented to the President includes provisions that challenge critical executive branch authority, the President’s senior advisors would recommend that he veto the bill.

Now, a couple points:

1. It is actually Sections 1032 and 1033, which are not mentioned at all in the President’s list of objections (ctrl + f that for yourself), that deal with indefinite detention and habeas corpus rights. In other words, Obama has a lot of objections about the way the 2013 NDAA regulates detention, but he has nothing to say about its tricky wording on indefinite detention. Indeed, he has no stated objections to indefinite detention at all.

2. As I wrote in my first post on this subject, some of Obama’s objections make sense. For instance, I too don’t see why we need a law saying that if you were in Gitmo, and then you were released to Micronesia, you can never come to the U.S. I don’t know why you’d want to, but hey, go for it. I agree with the Administration that this “is unnecessary and could undermine our relations with a friendly government.” You know us libertarians are all about the making friends and trading with people.

3. But — and this is an important but — most of Obama’s objections are not so reasonable. They’re primarily concerned with impediments in the form of restrictions and paperwork on his flexibility to try, transport, and otherwise treat detainees how he sees fit. For example, he objects to Sections 1040 to 1042, which require stuff like telling the Senate Committee on Armed Services and the House Committee on Armed Services if detainees are captured or transferred under various circumstances. The White House states that this “would unnecessarily complicate and potentially compromise military operations and detention practices.”

As I wrote before, I’m all for simplicity in government five times as much as the next guy, but given the history of abuse of detainees’ rights and persons, this additional transparency might not be the worst thing. Of course, I have no illusions that these congressional committees will use these reports to become champions of individual rights.

That said, it primarily strikes me as ridiculous that anyone in this (or, for that matter, the previous) Administration could complain about a lack of flexibility in dealing with detainees. How much more leeway to arrest (often by mistake), hold without charge or trial, and even torture people could anyone need?

So, of Obama’s objections you wrote that the Administration ”has threatened to veto the law over concerns about the detainee provisions,” and that the threat will result in some lame concessions and a signature, but Romney would be worse. I agree that Romney (for whom I will not be voting) has evidenced no concern for the rights of detainees and evinced no willingness to consider that the U.S. military may be mistaken in its capture and treatment of terror suspects. Romney’s (and most of the GOP’s) foreign policy is terrible, end of story. But it is inaccurate to suggest that Obama’s veto threats are out of concern for anything but his own policy flexibility, as indeed his own statement makes extremely clear.