Obama Would Veto Defense Bill Over Detainee Provisions

May 24, 2011 2:35 p.m.

The White House is threatening to veto the annual must-pass House Defense Authorization bill over language limiting his ability to transfer detainees overseas or try them in civilian court, among other issues.

In addition, the White House is taking strong exception to language dramatically expanding the president’s power to wage the war on terror indefinitely, among other provisions.Now that Osama bin Laden is dead, House Republicans, led by Armed Services Committee Chairman Buck McKeon (R-CA), are attempting to update the 2001 Authorization for the Use of Military Force — the legal underpinning of the war on terror — so it doesn’t phase out as the connection between existing terrorist groups and the September 11 attacks themselves becomes more and more tenuous over time.

The House is debating the bill with a vote expected later this week.

The new language jettisons references to September 11, and instead focuses on the authorization on “armed conflict with al-Qaeda, the Taliban and associated forces,” though “associated forces” is not defined. It replaces the authority to target “organizations” and “persons” domestically with the power to target “all entities that continue to pose a threat to the United States and its citizens, both domestically and abroad.”

Progressive Democrats and anti-war activists argue that the looser language will allow the President to initiate military action even more broadly, and without the consent of Congress — effectively perpetuating the war indefinitely.

The Obama administration rejected the language, saying it would “effectively recharacterize” the scope of the war on terrorism and “would risk creating confusion regarding applicable standards.”

“At a minimum, this is an issue that merits more extensive consideration before possible inclusion,” the Office of Management and Budget said in a Statement of Administration Policy.

The administration also strongly opposes provisions in the bill preventing any funds from being spent on transferring detainees overseas or trying them in federal court, effectively forcing Obama to keep the remaining detainees at the prison facility at Guantanamo Bay and prosecute them through military commissions.

The only way Attorney General Eric Holder could try a detainee for “terrorist offenses” in a civilian court, if the bill became law, is after he asked and received permission from director of national intelligence and the secretary of defense.

President Obama earlier this year said politics had forced him to keep the Guantanamo Bay facility open but the language in the defense bill would tie his hands on the issue forever.

“For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence,” the statement said. “The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.

“If these provisions that challenge critical executive branch authority” remain in the bill, his advisers would recommend a veto, according to the statement.

More broadly, the administration is also recommending a veto over other provisions relating to the F-35 Joint Strike Fighter being developed by General Electric and Rolls-Royce, as well as language that it said would “set onerous provisions” on implementing the new START Treaty with Russia.

Obama’s advisers also strongly rebuked Republicans for inserting other controversial provisions in the bill, including language aimed at delaying or preventing the repeal of “Don’t Ask, Don’t Tell” and reaffirming the Defense of Marriage Act. Despite his strong objections to both provisions, he did not say he would veto the bill over them.

The DADT-related amendment, sponsored by Rep. Duncan Hunter (R-CA), expands the required certification process for repeal. That process already requires a sign-off from the president, defense secretary and chairman of the Joint Chiefs of Staff, but the provision would also require the approval of the service branch chiefs of the Army, Navy, Marine Corps and Air Force.

The first of the two marriage amendments, proposed by Rep. Vicky Hartzler (R-MO), defines “marriage” and “spouse” as relating only to opposite-sex marriages and makes the amendment germane by crafting it to refer to Department of Defense rules and regulations, as well as DOD employees,

The second, offered by Rep. Todd Akin (R-MO), expands the current restrictions of DOMA by effectively banning same-sex marriages from being performed at military bases or by military employees.

Brian Beutler contributed to this report.

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