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"Undermining Our National Security"

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Report 16 June 2011

Terrorism & National Security Terrorism & National Security Libya national security NDAA

As Congress's role in war-making decisions is highlighted by the debate around Libya and the War Powers Act, today the Senate Armed Services Committee is working on legislation that would have drastic consequences for presidential power and national security.  The committee is finishing the markup of the 2012 National Defense Authorization Act (NDAA). The NDAA is meant to serve as the legislative blueprint for America's defense policies. However, provisions reportedly being considered by the Senate committee include un-debated changes to America's counterterrorism policies and presidential authority that run counter to security experts' views. An expansive Authorization for Use of Military Force (AUMF) would give any president wide ranging authority without oversight from Congress, reference to world events, or an expiration date.  

This week a nonpartisan group of retired generals and admirals wrote to Senators Carl Levin (D-MI) and John McCain (R-AZ), the chairman and ranking member of the Armed Services Committee, expressing their national security concerns.  Additionally there are a number of other defense issues that have already been debated and decided upon but that the House version of the bill tries to override. These provisions do not represent a serious plan for America's national defense.

Nonpartisan group of generals and admirals: NDAA provisions "would undermine our national security." Yesterday a nonpartisan group of retired generals and admirals wrote to Senators Levin and McCain: "We write to you to express our concern about certain provisions that may be considered when the Senate Armed Services Committee marks up the National Defense Authorization Act, which we believe would reshape our counterterrorism policies in ways that would undermine our national security.  We oppose any effort to return to torture of terrorism suspects.  Enhanced interrogation techniques or torture, in our experience, are counterproductive, unreliable, immoral and illegal. We oppose any Authorization for Use of Military Force (‘AUMF') or ‘reaffirmation' of an AUMF that expands war efforts against al Qaeda, the Taliban, ‘associated' forces and their supporters on a global basis.  We should treat those who violate U.S. and international law as criminals, not warriors. 

"Lastly, we oppose any provisions that would require that all future foreign terror suspects be sent to Guantanamo or tried before a military commission. We should not turn criminals into warriors by trying them before military commissions.  The military's mission should not be expanded to become judge, jury and jailor for all foreign terror suspects.  Federal courts have more criminal laws to incapacitate terrorists, more precedent to guide them, and more experience in adjudicating these laws than military tribunals. Federal courts have obtained more than 400 convictions of persons on terror related crimes, while commissions have convicted only six.  We do not support making permanent certain restrictions governing detainees at the Detention Facility at Guantanamo for the same reasons." [Letter, 6/15/11]

No limits on time or geography - no matter who is president and what is happening in the world. The legislation that passed the House of Representatives removes the connection between 9/11 and military action and expands presidential authority while leaving ambiguous who the enemy is. Joseph Margulies of Northwestern University School of Law and associate director of the Roderick MacArthur Justice Center explains, "The language insisting upon a connection to September 11 has been removed, along with the requirement that military action be intended to prevent ‘future acts' of terrorism against the United States... no one quite knows what ‘forces' might be considered ‘associated,' or what ‘support' is ‘substantial.' Congress has not troubled itself with definitions." Daphne Eviatar of Human Rights First explains, "The McKeon legislation [the House version of the NDAA]... would divorce the so-called ‘war on terror' from the September 11 attacks completely, and it would allow the president to continue that war, regardless of when or why it started, and regardless of where it believes it is continuing, into the indefinite future." A memo by the centrist organization Third Way outlines what this could mean: "Most disturbingly, the McKeon language does not specify... it could serve as a basis for authorizing unlimited action in Libya.  It possibly authorizes U.S. military action against groups such as Hezbollah and Hamas, who could be defined as engaging in hostilities against Israel, an ally. It also could include Iran, who supported insurgent operations in Iraq that targeted Americans."

This expansive authority would allow any future president broad powers to engage in military actions without congressional approval.  Eviatar explains, "If at any time the president determined that Iran was ‘substantially supporting' or ‘directly supported' al Qaeda, the Taliban, or any of the unnamed ‘associated forces' he believes are engaged in hostilities against us, then he would be authorized to use military force against the Iranian government-without any additional approval from Congress." And as Margulies fears, "it would have no expiration date, which means that the next president-President Bachmann, for instance-would inherit the new AUMF and all the power it bestows." [Joseph Margulies, 5/17/11. Daphne Eviatar, 5/18/11. Third Way, 5/24/11]

The House language tries to alter other defense policies which have been settled with Pentagon support.

Keeping the "waste of taxpayer money" that is the F-35 second engine on life-support. ABC reports that, "The House Armed Services Committee's version of the defense authorization bill would force the Pentagon to allow GE to keep developing and testing the second engine as long as the development is self-funded." Backers of the second-engine have offered to self-fund in hopes that Congress will change its mind and re-start funding to the project at a later date. In issuing a stop-work order last March, the Department of Defense wrote, "In our view it is a waste of taxpayer money that can be used to fund higher departmental priorities, and should be ended now." [ABC, 5/25/11. DoD statement via CNN, 3/24/11]

Obstructing U.S. nuclear security policy. Global Security Newswire reports that the House version of the NDAA "would prevent the White House from spending funds between 2011 and 2017 to retire any nuclear warhead covered by the New START treaty unless the Defense and Energy secretaries provide joint certification that the remaining arsenal is being modernized, according to a previous report. The legislation would also require the president to notify Congress before adopting any new nuclear targeting strategy or transferring armaments out of Europe. The White House voiced disagreement with the restrictions, adding that the legislation ‘raises constitutional concerns as it appears to encroach on the president's authority as commander in chief to set nuclear employment policy -- a right exercised by every president in the nuclear age from both parties.'" The White House statement also notes that one particular provision "would set onerous conditions on the Administration's ability to implement the Treaty, as well as to retire, dismantle, or eliminate non-deployed nuclear weapons." [Global Security Newswire, 5/25/11. Statement of Administration Policy, 5/24/11]

Impeding missile defense cooperation. Tom Collina of the Arms Control Association explains, "Given that early-warning data sharing would improve the United States' and NATO's ability to detect a missile launch from Iran, it is puzzling that a group of Republican Senators wrote to President Obama April 14 asking for his written assurance that he would not provide any ‘early warning, detection, [or] tracking' information to Russia. Similarly, the House version of the National Defense Authorization Act for FY 2012 would prohibit the transfer of such data to Russia. However, Moscow is highly unlikely to provide this information to the U.S. and NATO unless there is a two-way flow of data." [Tom Collina, 5/24/11]

Blocking the repeal of "Don't Ask, Don't Tell." The Center for American Progress explains: "The House NDAA included three amendments aimed to delay, disrupt, and derail the successful but still ongoing implementation of DADT repeal. One of these amendments, introduced by Rep. Duncan Hunter (R-CA), would require the chiefs of staff for the Army, Navy, Air Force, and Marine Corps to also certify that repeal will not impact military readiness or effectiveness," in addition to the Chairman of the Joint Chiefs and Secretary of Defense's certification, as already required under the law signed in December. The CAP report also points out that the "service chiefs themselves have voiced opposition with expanding the certification requirements," warning that it "could undermine the military's chain of command." [Center for American Progress, 6/8/11]

What We're Reading

Al Qaeda announced its new leader, elevating Ayman al Zawahiri, an Egyptian who had been operational commander of the global terror network and served as its public face.

American and Pakistani officials say the bilateral relationship could deteriorate as Pakistan's military leadership comes under unprecedented pressure from within its ranks to reduce ties with the United States.

The White House plans to keep running military operations in Libya even if Congress doesn't approve, saying the U.S. role is limited and does not violate the War Powers Act.

China's President Hu Jintao told his Iranian counterpart that six-nation talks were the best way to guarantee Iran's right of peaceful use of nuclear energy on the eve of the Shanghai Cooperation Organization meeting in Kazakhstan.

The son of Libyan leader Muammar Qaddafi stated that his father would be willing to hold elections in Libya by the end of the year and step aside if he lost.

A UN report cited evidence of the Syrian government's violent crackdown on unarmed civilians and condemned Bashar al Assad's extensive violations.

Greek Prime Minister George Papandreou is set to announce a new cabinet in a concessionary move as he seeks support for new austerity measures.

The Czech Republic is withdrawing from U.S. missile defense plans out of frustration at its diminished role.

Indonesian militant cleric Abu Bakar Bashir was jailed for 15 years for helping plan a paramilitary group that aimed to kill the country's president, a sentence that could inflame hardcore Islamists who had vowed revenge.

The Obama administration will expand sanctions on Iran and countries that do business with it, but new congressional legislation is unnecessary, according to Deputy Secretary of State Jim Steinberg.

Commentary of the Day

Lawrence Korb and Jacob Stokes argue that America needs to provide the right incentive for Congress to fund weapons that military and national security experts say the country needs, instead of pet projects favored by influential members of Congress.

Elias Muhanna claims that the direction of the new government in Lebanon could profoundly re-shape Lebanon's relationship with America and the international community, just as it will play an important role in determining the fate of the Syrian opposition to the Assad regime.

Kirit Radia suggests that the United States' decision to take bold steps to usher regional dictators from power only through quiet means is a sign not only of the complexity of the region, but that it does not want to be seen as the backers of the Arab Spring.