Late last year Congress, in a bi-partisan fashion, wrote into law the requirement that foreign born terrorists captured in the US be held in military custody as enemy combatants. Our president strongly objected to this provision, but signed the enclosing defense spending bill in to law with a “signing statement” recording his disagreement. Even after Congress wrote a codicil enabling the White House to waive the requirement in the interests of national security.
Well, give the man an inch:
Under Mr. Obama’s guidelines, if F.B.I. agents take someone like Mr. Abdulmutallab into custody and think there is probable cause to believe that the prisoner fits the definition of a terrorism suspect covered by the law, they are to notify the attorney general.
The attorney general, in consultation with other top members of the executive branch legal team — the secretaries of state, defense and homeland security, the chairman of the military’s Joint Chiefs of Staff and the director of national intelligence — will discuss whether there is “clear and convincing” proof the prisoner is covered by the law.
If so, the officials are to consider whether the prisoner is covered by the waivers Mr. Obama is issuing. Even if not, the administration guidelines allow the attorney general to make other exceptions on a case-by-case basis.
All six members of an interagency national security team must agree before a prisoner is transferred to military custody, effectively giving any of them veto power over complying with the mandate. In addition, even if all six agree that a prisoner should be transferred to the military, the director of the F.B.I. must agree that the timing is right.
So if a terrorist is detained it requires “clear and convincing proof” that he is covered by the law, and even if he is, any one of a six-person star chamber – all of whom report directly to the president – may veto that decision. And if none can be found willing to do so, AG Holder can make exceptions on a “case-by-case basis.”
Why such broad interpretation of the “waiver clause”, which to the disinterested would seem like the executive branch deliberately gutting federal law, without even the intervention of the Supreme Court, the third c0-qual branch of government?
Because the president is smarter than Congress, that’s why.