WASHINGTON -- The White House Thursday handed out its first veto threat since President Barack Obama won reelection when advisers warned that they would counsel the commander-in-chief to nix the defense bill currently on the floor of the Democratic-controlled Senate.
The White House warned that the National Defense Authorization Act of 2013 breaks from the president's budget request, limits his ability to pursue his defense strategy and trespasses on his power.
Among the issues the president's Office of Management and Budget singled out were some of the controversial military detainee provisions, although it did not take issue with language passed in last year's bill that lets the military hold American civilians without trial.
Instead, the White House complains about ongoing restrictions on its ability to transfer prisoners from the Guantanamo Bay, Cuba, prison base for terrorism suspects, which are reasserted in section 1031 on the bill.
"When he signed past versions of this legislation, the President objected to the restrictions carried forward by section 1031, promised to work towards their repeal, and warned the Congress that the restrictions on transferring detainees from Guantanamo Bay to foreign countries would in certain circumstances interfere with constitutional responsibilities committed to the Executive Branch," said a statement of administration policy.
"Since these restrictions have been on the books, they have limited the Executive's ability to manage military operations in an ongoing armed conflict, harmed the country's diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security," the statement said.
The restriction stemmed from debates in recent years over both transferring terrorist suspects to the United States and sending them back to their homes where some have rejoined terrorist groups.
"The administration also continues to oppose the prohibition on funding to construct, acquire or modify a detention facility in the United States to house any individual detained at Guantanamo, which shortsightedly constrains the options available to military and counterterrorism professionals to address evolving threats," the White House said, dubbing the restrictions "misguided when they were enacted."
Civil liberties advocates agree that suspects can be brought to the United States and tried in civilian courts, but many remain disappointed that Obama did not veto last year's NDAA, which codified the right of the executive to hold any terrorism suspect in military custody without trial.
Obama signed it into law, but pledged not to detain anyone caught in the United States indefinitely.
Senators are trying to undo that aspect of the law in this year's bill.
The administration also objected to a number of other provisions in the legislation, including a measure that undoes some cost savings for military health care; restrictions on getting rid of unwanted planes; cuts to the civilian military workforce; a restriction on the Defense Department's use of alternative fuels; restrictions on European missile defense work; curbs on payments to Pakistan the the White House deems essential, and provisions to pay for advanced fighters and tanks that the military does not want.
The White House supports a section that ensures women in the service have access to abortion services in cases of rape or incest, and can pay for abortions on their own in other cases.
Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.
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Interview A Member Of The Taliban
<strong>Scenario:</strong> As a foreign correspondent on assignment in Afghanistan, you successfully contact Taliban representatives who take you to meet a mullah. After you've completed your interview and fact-finding mission, U.S. officials arrest you under suspicion of terrorism. <strong>How:</strong> Section 1021 (2) of the National Defense Authorization Act <a href="http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf" target="_hplink">grants power</a> to indefinitely detain "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." You're not sure if what you did was "substantial" or really "supported" anyone. It's quite possible that nobody does, as the text of the law doesn't define these words. This could take a while to sort out. In the recent hearing on a lawsuit challenging that section of the act, Judge Katherine Forrest asked an Obama lawyer if plaintiff Chris Hedges could be assured that he would not be subjected to detention under Section 1021, journalist Naomi Wolf <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">noted</a>. Hedges is a Pulitzer prize-winning reporter who has worked extensively in Afghanistan and the Middle East. The administration attorney suggested that the specifics of Hedge's situation would make his detention unlikely, but responded, "I cannot say that today." While the Obama administration has said you're entitled to a trial as a U.S. citizen, this won't preclude you from a protracted journey through an encumbered court system charged with figuring out -- based on secret evidence -- why you were picked up. And if it this happens during a future administration, officials might not agree with Obama on your right to a trial.
Attend A Fundraiser
<strong>Scenario:</strong> A local civil liberties group holds a swanky fundraising event and you, a wealthy philanthropist, write a sizable check. Sometime later, the group is placed on a watch list, which results in authorities arriving at your door, hauling you away. <strong>How:</strong> It's possible a portion of your money somehow got funneled to al-Qaeda or a pro-Taliban group or that somehow you became an indirect material supporter of what the National Defense Authorization Act calls an "associated force." But just what are "associated forces"? That question appeared to stump Obama administration lawyers when pressed by Judge Katherine Forrest during a recent hearing. "I don't have specifics," an attorney told her. Answering a later question about whether WikiLeaks could be construed as an "associated force," an administration lawyer suggested that it couldn't, unless there were a connection to the Taliban or al-Qaeda. If someone happens to be wrong about your case, you might sit in detention until the courts figure it out. Or, according to the act, you'll be released when officials determine it is "the end of the hostilities authorized by the Authorization for Use of Military Force."
Write A Book
This hypothetical situation comes straight from this spring's hearing on a lawsuit challenging parts of the National Defense Authorization Act, as captured by <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">Naomi Wolf</a>: <blockquote>Bruce Afran, lawyer for the plaintiffs, presented the hypothetical of a book that did not say how to make a bomb but simply expressed support for the political goals of the Taliban, or that made the case that the Taliban's view that the US government overreaches in occupying other countries, has merit. He and Judge Forrest discussed the hypothetical that such a book could be a bestseller and be on a book tour, generating comment throughout the Middle East. Judge Forrest simplified the example to a hypothetical of a book with only one sentence, and whose only sentence read: "I support the political goals of the Taliban'. She asked the government lawyers if such a book could be read as providing 'material support' for 'associated forces" under the NDAA. They did not rule it out. Judge Forrest pushed: "You are unable to say that [such a book] consisting of political speech could not be captured under [NDAA's Section] 1021?" Obama lawyers: "We can't say that."</blockquote>
Organize A Demonstration
<strong>Scenario:</strong> Some societal injustice is prompting you to start a movement in protest. Hours after a particularly well-attended and rambunctious rally, you're approached by men in black suits who flash their badges and toss you in the back of their unmarked SUV. <strong>How:</strong> It's possible that you or one of your loosely connected crew of associates did something to make you a suspect linked to an "associated force." Or perhaps, according to another part of National Defense Authorization Act's Section 1021 (2), your actions constituted "substantial support" to a "person who has committed a belligerent act or has directly supported such hostilities in aid of [al-Qaeda or the Taliban]." Journalist and "Day of Rage" organizer Alexa O'Brien joined a recent lawsuit challenging sections of the act out of concern that she was being targeted as a potential terrorist threat. But at a hearing on the suit this spring, Obama administration officials did not alleviate such concerns, as <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">Naomi Wolf has documented</a>: <blockquote>O'Brien produced into evidence a [Department of Homeland Security] memo that sought to link US Day of Rage to their cyberterrorism initiative. The government lawyer was given a chance by Judge Forrest to dispute the memo as fraudulent and did not do so.</blockquote>
Help Out A Friend
<strong>Scenario:</strong> A good friend whom you've lost touch with contacts you, asking for help funding his around-the-world trip. You wire money and wait for him to return. Sometime later, there's a knock on your door. The people on the other side of it have questions about a sum of money you sent abroad to someone questionable. They ask you to come with them. <strong>How:</strong> You're finding it impossible to believe that your childhood friend became a terrorist or connected with al-Qaeda, the Taliban or "associated forces." But even if he did manage to get mixed up in some sketchy business, shouldn't there be an exception for you, his well-intentioned friend who was just helping someone in need? Not necessarily. At a recent hearing, Judge Katherine Forrest tried to get the Obama administration to <a href="http://naomiwolf.org/2012/03/ndaa-hearing-notes/" target="_hplink">give an assurance that "unwitting" support</a> could be protected, noting that there was no direct reference to such language in the law. Obama's attorney was unable to provide such a safeguard, instead arguing that the new law possessed the same exemptions contained within the Authorization for Use of Military Force Against Terrorists, which was passed by Congress after 9/11. The brief and broadly interpreted <a href="http://www.gpo.gov/fdsys/pkg/PLAW-107publ40/html/PLAW-107publ40.htm" target="_hplink">authorization</a> makes no mention of the word "unwitting," though.
Accidentally Provide Missiles To Insurgents
<strong>Scenario:</strong> You're a flippant, billionaire playboy or -girl with a cool haircut and two Ph.D.s., one in nuclear fusion and the other in kicking ass. You get bored, so you decide to fight crime in Afghanistan and make a quick jaunt to Kandahar. In the process of taking on an encampment of Taliban insurgents, the firing mechanism for one of your missiles malfunctions, launching it thousands of feet into the air. It returns to Earth undetonated, only to be picked up by an enemy who uses it as the centerpiece of an improvised explosive device. When a U.S. mine-sweeping crew deactivates the makeshift bomb and finds your name emblazoned on the device, you're picked up. <strong>How:</strong> This appears to be a clear-cut case of "substantial support" to the Taliban or at least "associated forces" who wanted to do harm to U.S. troops. So much for your intentions of wanting to help out with a little vigilante justice. Any resulting court case could take ages.
Plan A Terrorist Attack
<strong>Scenario:</strong> You're a total jerk and not a very big fan of America, so you decide that the best course of action is to take out your anger with an act of destruction on a densely populated city. You do some planning and set up your device, but when it comes time to use it, it malfunctions, leaving you injured and going to jail on a stretcher. <strong>How:</strong> You're an American citizen, you'll get your constitutional guarantee of a trial, right? If President Barack Obama's promises are followed, yes. But that doesn't mean you can't undergo some form of indefinite detention while you await trial. During a hearing on the lawsuit challenging parts of the new National Defense Authorization Act, Obama's lawyers were unable to say for sure if the trial promised in his signing statement would be a civilian or military one. This could have a heavy bearing on the nature of your detention. And if you were to commit such actions under the administration of another president, there's no telling how a new commander in chief would interpret the act, making your fate even less certain.