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May 19, 2012 10:07 AM The Upside Down World of Defense Authorization

By Matthew Zeitlin

For civil liberties advocates, the Obama administration has been a disappointment. A major reason for the administration’s retrenchment on many Bush-era civil liberties and national security policies is that the administration seems to substantively agree with their predecessors that a great deal of the policies and programs they introduced are worth either preserving and expanding, or at the very least, not worth actively repudiating and investigating (enhanced interrogation being an example of repudiation without investigation).

The other major factor that can not be ignored in the development of the administration’s approach to civil liberties and the policies they have pursued is Congress. Although there are some lawmakers who are dedicated foes (or proponents) of executive power and discretion in wartime and in shaping national security policy, a great deal of Congress is typically almost reflexively partisan, supporting an expansive and powerful executive branch if said executive branch is controlled by a member of their own party. The conventional thinking goes that presidents will tend to not support paring back their own discretion in national security matters and that to implement stronger civil liberties protections, you need a federal judiciary willing to intervene and a Congress that will force the president’s hand.

But as the recent House passage of the defense authorization bill shows, we have a situation where the the Republican majority in the House is trying to limit the president’s discretion in national security policy, but they are limiting to the president’s discretion to be less hawkish. Here are just some examples from Walter Pincus’s Washington Post story on the bill’s House passage:

One section of the bill that drew a specific veto threat would limit the president’s ability to retire, dismantle or eliminate non-deployed nuclear weapons. Other elements cited by the White House would restrict the transfer of detainees at Guantanamo Bay to the United States or foreign countries and prevent those transferred to Micronesia from traveling to the United States. … Another element would permit indefinite detention without trial of terrorism suspects, including American citizens, captured on U.S. soil.


The House measure would also ban same-sex marriages on military bases and force the president to approve the controversial sale of F-16 jet fighters to Taiwan.

Although the F-16 sale and nuclear weapons retirement restrictions are not matters of restricting or expanding the military and executive branch’s power and discretion in the civil liberties sphere, they are certainly of a piece with the Guantanamo mandate and indefinite detention rules that the Republican House is trying to force on the executive branch. On Guantanamo and nuclear weapons, Congress is trying to take away the President’s discretion, but only so that he is forced to enact conservative policies.

On many civil liberties and foreign policy issues (the constitutionality of the Libya intervention being a prime example), Congress seems content to simply leave the decisions to the President and, if they deign to get involved, the judiciary. But, when the branch controlled by the opposing party decides to get involved in civil liberties questions on the side of giving the president power he does not want, then any hope for a rollback of Bush-era national security policy, or the Bush-era approach, is basically hopeless.

Comments

  • RepubAnon on May 19, 2012 11:48 AM:

    So they simultaneously are demanding that the Executive Branch accept the power to unilaterally arrest and imprison people for an unlimited period without trial, while warning about how President Obama is trying to gain such powers?

    Meanwhile, the Chicago police are arresting activists just before the big NATO conference, on charges that will undoubtedly be dismissed after the conference is over.

    I guess we don't have to worry about people hating us for our freedoms any more...

  • jjm on May 19, 2012 12:19 PM:

    It's hard to imagine those sworn to uphold the Constitution avidly supporting this indefinite detention measure.

    Republicans are classic authoritarians. They are uppity right now because in their minds President Obama does not have 'legitimate' authority.

    In a bit of his defense, Obama could not in his first term lift all of the Bush security practices, as we would never have heard the end of how he is endangering America. Of course, we got this anyway, with somehow the demise of bin Laden, decimation of the Al Qaeda network's leadership, and prevention of several high profile terrorist plot "PROVE" to the demented GOP that Obama is weak on terror. Romney is still making that ridiculous charge.

    This House bill stinks -- with its $17,000 pans (thank you Rogers [R] of KY for that) to high heaven.

    I really hope that we see Democrats take back the House and keep the Senate. At that point, we will see government actually setting to work again after this two year hiatus, allowing for differences, and coming up with decent legislation. And the end of the filibuster as we know it.

  • c u n d gulag on May 19, 2012 1:05 PM:

    Conservatives are all FOR a Presidents 'War powers.

    Especially when he's (she's in the future) one of their own.

    It's any 'Peace Powers' that a President may have, that these War-thoritarian Conservatives object to.

  • FlipYrWhig on May 19, 2012 1:32 PM:

    If you were the president, how long would you have to watch a Congress like this before deciding, ideology be damned, my new view is that the president should have maximum opportunity to circumvent these chowderheads?

    I think a big part of the answer to part 1 is that the Obama executive branch wants discretion to do things its way, not because they believe that executive power is ideologically appealing (which IMHO Cheney/Addington/Yoo definitely do) but because they find themselves forced daily to deal with obstruction and other mischief.

    As a parallel, I don't know a big business that wouldn't leap at the chance to hire someone without having to run all the details past Human Resources. For all the good HR departments can and do do, they introduce delays and police arcane procedural details, and even the most progressive bosses at the company long to avoid dealing with them. That's what Congress is like, especially now that Republicans are basically wanton nihilists.

  • KarenJG on May 19, 2012 4:02 PM:

    They know Obama isn't likely to use this power (and, of course, they'd scream bloody murder if he did). They just want it ready and waiting for the next publican pres to use on all those "terrorists" who disagree with the publican agenda.

  • Doug on May 20, 2012 5:22 PM:

    While a few Republicans MAY be looking "forward" to these various powers being in the hands of someone from their party (as per KarenJG), it seems to me that these are basically partisan; ie, Republican, political points. The support for them may cross the aisle on occasion, but on the whole it's Republican positions being supported by Republican politicians.
    And since ONLY Republican positions/policies are valid, OF COURSE they will be "forced" onto a Democratic President.