This is the Cato Daily Podcast for Tuesday, December 20th, 2011. I'm Caleb Brown.

The President has backed away from a threatened veto of the Defense Authorization Act now

that it's passed both houses of Congress, but not for the reasons you might think.

There's plenty wrong with how the legislation deals with the subject of due process rights for

Americans.

Ben Friedman is a research fellow in defense and homeland security studies at the Cato Institute.

We spoke last week.

I think the controversy about that provision and the overall authorization bill from the Senate is a little bit

misplaced because there is a waiver that lets the president not put suspected Al Qaeda terrorists in their

associates in military detention, avoiding criminal trial if he so chooses.

And I also think the way I read the law at least,

I think he could just avoid declaring them

suspected al-Qaeda terrorists in the first place

and say that's why we have trials

and then avoid the bite of the law that way without even resorting to the waiver.

So to me the real problem with the bill is a different section. it's section 1031 of the bill, which sort of reauthorizes, arguably

at least, reauthorizes the war.

And it says that Congress affirms that the authority of the president

to use all necessary and appropriate force pursuant to the authorization of military force includes the authority of the armed forces of the United States to detained covered persons.

And then it says that is a person who planned, authorized,

committed or aided the terrorist attacks of September 11th or those who harbored

those people and then also a person who was part of or substantially supported al-Qaeda, the Taliban,

...