Seema Saifee on Obama's Veto Backdown

As Lawfare readers know only too well, I don't engage with He Who Must Not Be Named on this Blog. I do, however, engage with Seema Saifee, who represents four Guantanamo Uighurs (three of whom are no longer detained there) and who sent some interesting comments to me on President Obama's decision not to veto the NDAA. The trouble, you see, is that Saifee--in these very same comments--does engage the Unmentionable One. And that creates a predicament I have never faced before: How to give voice to legitimate reader-practitioner thoughts I would otherwise publish while not allowing He Who Must Not Be Named on this Blog to slip in through the back door. Inspired by the D.C. Circuit's decision Latif, I offer the following solution:

Accounts of Congress’ haste to enshrine indefinite detention in the 2012 NDAA and the White House’s threat to veto the bill are abundant.  But few have analyzed the basis of President Obama’s recent decision to withdraw his veto threat.  [REDACTED] provides an insightful analysis of the revisions to the NDAA that satisfied the White House.  These revisions, [REDACTED] observes, “had nothing to do with civil liberties, due process or the Constitution,” and “everything to do with Executive power.”  As proof, [REDACTED] observes, the White House even objected to a provision that would have exempted US citizens from military detention.  In other words, [REDACTED] notes, the White House’s objections were not premised on the idea that indefinite military detention is contrary to American values.  The objections were to the mandatory language in the bill that limited the President’s discretion--and this is key--“regardless of whether those limits forced [Obama] to put people in military prison or barred him from doing so.” [REDACTED]’s analysis of the changes that led to the bulletproof version of the NDAA signal another concern, one we all should be worried about:  President Obama is far less interested in closing Guantánamo and far more interested in preserving exclusive authority in the executive to decide when and how to do so. The habeas cases make this plain. In 2009, 2010 and 2011, Obama’s DOJ aggressively resisted the authority of Article III courts to order the release of habeas “winners” at Guantánamo.  Had Obama dropped the Bush DOJ’s appeal of Kiyemba, the Uighurs would have been brought to the US, and the US would have blazed a trail for European allies to follow (a trail, notably, that our allies expressly and repeatedly sought).  Obama’s concern with the Uighur release order--which would have, inevitably, placed him one step closer to achieving his stated goal of closing Guantánamo--had nothing to do with concerns about resettling the Uighurs in the US, but was premised on the belief that the decision to release the Uighurs was for the President, not the courts, to make.  The proof is that shortly after the DC Circuit concluded that the Uighurs had no judicial remedy (a ruling the Obama administration sought aggressively to preserve), Obama closely considered (and, as we all know, abandoned) an Executive plan to bring the Uighurs to the US. In other cases, notably Latif and Uthman and Almerfedi (and the list goes on), where district courts have concluded that the government’s evidence to hold a detainee was scant, unreliable or incredible, the President, instead of releasing the detainee, invoked executive authority to detain him indefinitely.  In other words, Obama stymies his own effort to close Guantánamo where release of a detainee would threaten his executive discretion, e.g., his discretionary policy of de facto indefinite detention of Yemeni detainees or his decision to slate some detainees for indefinite detention--both policies established by Obama well before Congress acted.  (Today, Congress has, expressly or in effect, codified both policies, revealing that Congress may be tying Obama’s hands, but it is Obama who provided the rope.) President Obama may want to close Guantánamo, but only without intrusion by the other branches--even if (at least one of) those branches could bring him closer to the finish line.