The Upside Down World of Defense Authorization

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.