President Obama campaigned on promises to shut down the detention facility at Guantanamo Bay. But many human rights activists say his administration has backpedaled in the face of stiff congressional opposition. This week, Congress passed a controversial defense spending bill that would require military detention of terror suspects — despite the threat of a presidential veto. We explore the debate.


  • Massimo Calabresi Washington Correspondent, Time Magazine


  • 13:06:43

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, a Food Wednesday conversation about unique pickling and preserving traditions from around the world. But first, a different kind of pickle, a new showdown over indefinite detention and military justice for terrorism suspects. This week, Congress passed its final version of the 2012 National Defense Authorization Act despite a threat of a presidential veto.

  • 13:07:27

    MR. KOJO NNAMDIThe bill's most controversial provisions would require military custody for some terrorism suspects. Another provision authorizes the military to indefinitely detain people without charge, including U.S. citizens apprehended on U.S. soil. The White House veto threat apparently lead to some weakening of those provisions, but it also reveals just how far the administration has moved on the issue of legal rights for terrorism suspects. Joining us to discuss this, by phone, is Massimo Calabresi, Washington correspondent with Time Magazine. Massimo, thank you for joining us.

  • 13:08:04

    MR. MASSIMO CALABRESIThanks for having me, Kojo.

  • 13:08:05

    NNAMDIThis issue has largely been under the media radar, but the provisions contained within the 2012 National Defense Authorization Act certainly sound alarming. American terrorism suspects detained in the U.S. could be held indefinitely without charge, that certain terrorism suspects would have to be held by the military. What does the final version of the bill actually say?

  • 13:08:29

    CALABRESIWell, the final version of the bill is a "mush," to quote one close observer of it. It had what were fairly strong codifications, sort of permanent Congressional judgments on a lot of the issues you just rendered. But in response to those permanent codifications, the administrations raised objections, not so much the limits on civil liberties, but the -- rather the limits that the bill might impose on the executive branch and how it wanted to pursue counterterrorism.

  • 13:09:08

    CALABRESISo what is there is a lot of this kind of thing, it -- this bill requires the military to take the lead in certain kinds of terrorism cases, but nothing in this bill should be seen as restricting the White Houses' ability to determine how to pursue counterterrorism. So it's really a big mess of a bill which creates its own concerns.

  • 13:09:39

    NNAMDIOn a certain level, one could see this veto threat and think the administration was seeing eye to eye with human rights groups, but it turns out that the concerns being raised by administration officials are very different than those being raised by human rights activists.

  • 13:09:55

    CALABRESIThat's quite right. The concern for human and civil rights activists, from the start, has been to try and roll back the expansion of executive branch authority in counterterrorism that occurred in the Bush administration in the years after 9/11. And indeed, President Obama made those concerns very much a part of his campaign...

  • 13:10:19


  • 13:10:19

    CALABRESI...for election in 2008. However, in the first six months of his administration, the Republicans, especially in the Senate, looking for some way to weaken a president who was then very popular chose two issues, one was spending, the other was national security and specifically counterterrorism. And they went after him on his pledges to close Guantanamo Bay and to limit the use of the military in fighting terrorism, very aggressively. And over that six months, they won that battle politically in the country and Obama, in late May of 2009, swung very much in the direction and very much to the position that George W. Bush had been in -- been at in these issues when he left office.

  • 13:11:08

    NNAMDIIf you'd like to join the conversation, call us at 800-433-8850. Do you, in fact, think that the conversation has shifted over the course of the past three years, over detention of terrorism suspects? President Obama campaigned on the issue of shutting down Guantanamo Bay and on the idea that President Bush had set dangerous precedents with its counterterrorism policies.

  • 13:11:29

    NNAMDIDo you see the current -- the conversation now shifting, taking President Obama back in the direction which President Bush was following? Call us at 800-433-8850 or send email to Massimo, you say that's the context in which we look at -- we should be looking at President Obama's position, what has occurred over the course of the past three years.

  • 13:11:51

    CALABRESIThat's right. I mean, if you look at the Defense Authorization bill, the objections that Obama has raised over this bill are all to do with limits the bill would place on how he can prosecute his counterterrorism policies and not at all on the extra powers that they -- that the bill has seen to be giving the executive branch and the presidency to fight that fight.

  • 13:12:21

    CALABRESISo for example, he's fine with the bill's provisions saying that the military should be used and -- or could be used in a number of different ways to detain terrorism suspects in the U.S. What he objects to is anything that says he has to use the military, versus the FBI or some other executive branch power, in fighting terrorists and terrorism here in the U.S.

  • 13:12:49

    NNAMDIHere's Chris in Falls Church, Va. Chris, you're on the air. Go ahead, please.

  • 13:12:54

    CHRISI'm just concerned that this -- some of these restrictions would be both a violation of Habeas Corpus, which I think has not happened, wide spread at least since Lincoln did it a 150 years ago in an actual civil war and of the Posse Comitatus Act of the late 1870s, keeping the military from acting within the U.S. So -- and it doesn't define exactly or I haven't heard it define who would be responsible, the president, some military commander, head of a CIA or other operation group would actually make the decision to do this detention.

  • 13:13:35

    NNAMDIAnd, of course, the ACLU had specific objections to specific provisions. Massimo, could you tell us about what those are?

  • 13:13:42

    CALABRESIYeah, well, the caller raises some very justifiable concerns. The fact is that much of the restraint that has been placed on the executive branch with regard to both Habeas Corpus, Posse Comitatus and other sort of entrenched guaranteed constitutional rights and legal rights, have been placed by the courts especially under Bush when Congress was very much happy to let the president do as much as he wanted. And indeed a lot of the population of the U.S., according to polling, was happy to have very robust counterterrorism measures tip the balance toward security rather than civil liberties.

  • 13:14:36

    CALABRESIBut the Supreme Court came and pushed back, ensuring, for example, Habeas rights, even for non-citizens held outside the United States and a variety of other restrictions on what the executive branch could do. In this case, what the ACLU has been most worried about in this act is that, where there has been vagueness about what Congress thinks the president can and can't do, the court has been much more willing to limit to president. But when Congress has been explicit about what the president can do, the courts have a much harder time coming in and saying, this is unconstitutional.

  • 13:15:26

    CALABRESISo what the ACLU and others have feared in the Defense Authorization Act is that it would codify permanently certain presidential powers like the indefinite detention of American citizens or the use of the military for trials in the United States, potentially even of American citizens. And so it's not even so much the -- those policies which have already been carried out in a number of different ways over the last 10 years as it is Congressional rubberstamping of it in a way that will limit courts' ability to restrict presidential power.

  • 13:16:07

    NNAMDIChris, thank you very much for your call. Our guest is Massimo Calabresi. He is Washington correspondent for Time Magazine and we're talking about defense authorization and military detention. This is a defense authorization bill, Massimo, which is significant for at least a couple of reasons. First, it can be vetoed without it having any affect on the troops since it's not an appropriations bill. This is more of, essentially, a policy statement from Congress, is it not?

  • 13:16:33

    CALABRESIThat's right. There's two ways that the Congress moves to enact its authority to control spending under the constitution. First, the committees with oversight over various policy areas issue authorizing language that is essentially a policy statement by Congress on what it thinks should be done and then the appropriator issues appropriations bills that say how much can be spent on all of these policies.

  • 13:17:06

    CALABRESISo in theory, the appropriations process, which is part of this whole big spending fight that you've been hearing about, that's coming to a head elsewhere in Congress this week is going to play out in its own way and undoubtedly funding for the military will, you know, that one always passes. The authorization fight nominally doesn't effect that, nevertheless presidents, especially in an election year, are very reticent to do anything that can be portrayed in the political arena as somehow undermining anything having to do with the military.

  • 13:17:47

    CALABRESISo if the president were to follow through on his veto because of what he sees as the lack of clarity or what he has said is the lack of clarity about ways that Congress might be restraining him, it's not a political move that he is likely to want to make. It would be, frankly at this point, surprising if he was really willing following through with that veto threat. That said, FBI Chief Robert Mueller who has come forward...

  • 13:18:13

    NNAMDII was about to say, this is a unique group of people who have spoken out against this bill. On the one hand, you have the human rights and civil rights groups and then you have, on the other hand, the secretary of defense, the director of the FBI, the director of national intelligence. What are the concerns of those law enforcement agencies?

  • 13:18:32

    CALABRESIAgain, this is -- well, especially the law enforcement people, all of the executive branch principals, are going to naturally sort of fall on the side of the executive branch, not wanting to be constrained by Congress. In the case of law enforcement, it is a real threat and that has been a long running battle between the justice department and the FBI. On the one hand, in Congress and Republicans on the other over whether or not law enforcement, local police officers, federal law enforcement agents like the FBI and federal prosecutors can be and should be robustly used.

  • 13:19:17

    CALABRESIThis was -- in fighting -- in counterterrorism fights, this was the underlying issue in whether or not some of the 9/11 plotters, including Khalid Sheikh Mohammed, should be brought to trial in New York City. And it's played out in a number of different venues. But Obama has a strong ally in the FBI chief in this regard because he, of course, was chosen by President Bush and served his -- the majority of his time as FBI chief in the immediate wake of 9/11 and is very respected by Republicans and Democrats alike.

  • 13:19:55

    NNAMDIWell, who do human rights activists have on their side? Who is speaking for them in this debate? One gets the impression that Democrats are not anxious to raise this issue of Guantanamo and the like anymore.

  • 13:20:07

    CALABRESIWell, it's worth remembering that this bill was written by Carl Levin who is a centrist Democrat from Michigan.

  • 13:20:14


  • 13:20:15

    CALABRESIBut interestingly, of course, there is a sort of a meeting of the left and the right at their, you know, edges on this issue. Mike Lee, who is, of course, a Tea Party favorite Republican Senator from Utah, has come out with serious concerns about some of the provisions with regard to American citizens. So there has been a coalition that at least resulted in removing the appearance of congressional and premature for expanded detention of U.S. citizens.

  • 13:21:03

    CALABRESISo there was a 99 to 1 amendment sponsored by Diane Feinstein, passed the Senate 99 to 1 that didn't knock down any of the elements of war on terror that have been used against American citizens, but, you know, bravely said that nothing in the bill could be construed to change or affect any of those tactics that have been used.

  • 13:21:33

    NNAMDIHere's John in McLean, Va. John, you're on the air. Go ahead, please.

  • 13:21:39

    JOHNI would just like the guest to clarify, why hasn't the Supreme Court declared this, you know, unconstitutional? You know, to me, it's just, like, a clear violation.

  • 13:21:51

    CALABRESISure, sure. The easy answer to that is that if an American citizen joins a foreign army and starts fighting against the U.S., his rights are severely curtailed. And the Supreme Court has found that throughout the history of the United States, from the earliest days in the Revolution through the Civil War, through World War II. So to the extent that somebody, like for example Anwar al-Awlaki, the man who was killed by U.S. drones earlier in the year in Yemen, remains a U.S. citizen, but actively takes up the cause of Al-Qaida, the courts have been willing to grant the president a fair amount of authority to go after them in ways that it might not allow him to go after normal citizens.

  • 13:22:49

    CALABRESIBut there have been, you know, a number of very heated debates, both in public and behind the scenes from the administration over how you define what an American citizen taking part in Al-Qaida activities, how that compares to say joining forces with the Nazis as (word?) or other people did in World War II. You know, are you the equivalent of a foreign combatant if you're just sitting in a suburban house somewhere outside Sinai and Yemen and typing things on a computer? Do you have to be somewhere where there's an active battle taking place?

  • 13:23:35

    CALABRESIHow much does propaganda count as siding with the enemy? So these are terribly complicated issues. They haven't been adjudicated very far in the courts. It's really new territory. And so again that's one of the concerns is that congress gets in there early, starts passing laws on these things in ways that have unintended consequences.

  • 13:23:59

    NNAMDIMassimo Calebresi is Washington Correspondent for Time Magazine. He joined us by telephone to talk about defense authorization and military detention. Massimo, thank you so much for joining us.

  • 13:24:08

    CALABRESIMy pleasure. Thanks for having me.

  • 13:24:09

    NNAMDIWe're going to take a short break. When we come back, it's Food Wednesday. We're talking about unique pickling and preserving traditions from around the world. I'm Kojo Nnamdi.


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