National Security Network

“National Security Leaders Reject Militarization of the Justice System”

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Report 13 December 2011

Terrorism & National Security Terrorism & National Security Detainees NDAA

Late yesterday, the Senate and House of Representatives completed their conference on the 2012 National Defense Authorization Act (NDAA), leaving fundamentally unchanged provisions that mandate military detention of terrorism suspects, authorize indefinite military detention and harden restrictions on transfers of terror suspects.  In the words of Major General Paul Eaton (ret), military and national security leaders "reject the militarization of the American judicial system," and this has led to unprecedented and widespread opposition from former military leaders, civil libertarians, former intelligence officials, current national security leadership, former Bush administration officials and editorial boards across the country. The growing chorus includes, today, two retired four-star generals using the pages of the New York Times to indicate that they would support a White House veto of the bill.

Conference language does not address problems in the bill. As Andrea Prasow, senior counterterrorism counsel at Human Rights Watch explains, "The latest version of the defense authorization bill does nothing to address the bill's core problems - legislated indefinite detention without charge and the militarization of law enforcement." Chris Anders of the ACLU states, "The sponsors of the bill monkeyed around with a few minor details, but all of the core dangers remain - the bill authorizes the president to order the military to indefinitely imprison without charge or trial American citizens and others found far from any battlefield, even in the United States itself."

AP summarizes the changes made to the bill: "The bill would require that the military take custody of a suspect deemed to be a member of al-Qaida or its affiliates who is involved in plotting or committing attacks on the United States, with an exemption for U.S. citizens...lawmakers added a provision that says nothing in the bill will affect ‘existing criminal enforcement and national security authorities of the FBI or any other domestic law enforcement agency' with regard to a captured suspect, ‘regardless of whether such ... person is held in military custody.' The bill also says the president can waive the provision based on national security. Originally that authority rested with the defense secretary. House and Senate negotiators dropped several of the provisions in the House bill that also had drawn a veto threat, including the requirement of military tribunals for all cases... The legislation would deny suspected terrorists, even U.S. citizens seized within the nation's borders, the right to trial and subject them to indefinite detention. The lawmakers made no changes to that language." [Andrea Prasow, 12/13/11. Chris Anders via AP, 12/13/11. AP, 12/13/11]

There is widespread bipartisan rejection of detainee provisions contained in the NDAA from those who would have to implement it:  security experts, politicians, military leaders, civil libertarians and more. A broad and overwhelming consensus has developed in opposition to the detainee provisions in the NDAA. The consensus grew this week:

General Charles C. Krulak, former commandant of the Marine Corps, and General Joseph P. Hoar, former CENTCOM Commander: "Having served various administrations, we know that politicians of both parties love this country and want to keep it safe. But right now some in Congress are all too willing to undermine our ideals in the name of fighting terrorism. They should remember that American ideals are assets, not liabilities." [Charles Krulak and Joseph Hoar, 12/13/11]

Bob Barr, the conservative former Congressman from Georgia, writes in the Daily Caller: "During the course of the now decade-old ‘War on Terrorism,' both the administration of President Barack Obama and that of his predecessor, George W. Bush, aided by a largely compliant Congress, have sought and been given - or simply taken - unprecedentedly broad powers of surveillance and evidence-gathering that have severely diminished the heretofore protected civil liberties of U.S. citizens. Now, thanks to action the Congress is preparing to take, the threats to those liberties are being taken to a dangerous new level. The vehicle for this threat is the National Defense Authorization Act (NDAA)." [Bob Barr, 12/12/11]

Veto is a tool at the president's disposal. President Obama issued a veto threat over the preconference versions of both the House and Senate versions of the bill. There will undoubtedly be political cries from the right about the necessity of the bill and the danger that a veto threat poses. However as Generals Krulak and Hoar state, "This budget bill - which can be vetoed without cutting financing for our troops - is both misguided and unnecessary: the president already has the power and flexibility to effectively fight terrorism."

Daphne Eviatar, a senior associate in the law and security program of Human Rights First, explains, "The actual impact of vetoing a defense authorization bill is minimal. Four presidents -including Ronald Reagan and George W. Bush -- have done it in recent decades. The government will still pay the troops and spend what's necessary to sustain the military; the NDAA is only designed to authorize new programs." In fact, Congressional Research Service notes that four out of the last five presidents have vetoed an NDAA:  Carter in 1978; Reagan in 1988; Clinton in 1995; and George W. Bush in 2007. [Charles Krulak and Joseph Hoar, 12/13/11. Daphne Eviatar, 12/12/11. Nese F. DeBruyne, Defense Authorization and Appropriations Bills: FY1970-FY2011, Congressional Research Service, 5/3/11]

What We're Reading

U.S. President Barack Obama and Iraqi Prime Minister Nouri al-Maliki hailed the beginning of "a new chapter" for Iraq, one without the presence of American troops after a nearly nine-year war.

A Congressional panel has frozen $700 million in aid to Pakistan until it gives assurances it is helping fight the spread of homemade bombs in the region.

British Prime Minister David Cameron defended his decision to veto the new European Union fiscal compact before Parliament, drawing sharp criticism from opposition leader Ed Miliband, who accused Cameron of putting Britain's position in Europe at risk.

More than 5,000 people have been killed in nine months of unrest in Syria, the UN human rights chief said.

Several al Qaeda militants escaped from a prison in the southern Yemeni port city of Aden, officials said, tunneling their way out in the second such spectacular jailbreak this year.

Libya's new leaders said they hope to have a working army and police force up and running in 100 days.

In an attack which an Israeli official termed an act of Jewish terrorism, around 50 right-wing Israeli extremists infiltrated and attacked the Ephraim Regional Division Headquarters, an Israel Defense Forces military base in the West Bank.

Opposition leaders in eastern Congo are planning to protest the disputed re-election of President Joseph Kabila and while organizers say the protests will be peaceful, some opposition supporters say they fear rallies will spark violence.

Mikhail Prokhorov, a Russian billionaire, announced his candidacy for President of the Russian Federation, directly challenging the presumptive front-runner Prime Minister Vladimir Putin in the wake of disputed Duma elections.

President Lee Muyng-bak of South Korea stated that the South Korean coast guard would target more aggressively illegal Chinese fishing in the wake of the stabbing death of a South Korean coast guardsman by a Chinese fishing boat captain.

Lt. Gen. Jessie Dellosa, who recently took command of all Filipino military forces, announced that the Philippine Navy would channel more resources into claiming and defending the Spratly Islands, disputed with China.

Mexican marines captured Raul Hernandez Lechuga, leader of the powerful Zetas drug gang, in the state of Veracruz.

International human rights groups are criticizing a proposed bill in the Colombian congress that would permit military tribunals to decide whether soldiers accused of human rights violations should stand trial on those charges.

Commentary of the Day

Richard Clarke argues that the U.S. military is at its most effective when the President does not cede authority over decision-making to the field commanders.

Walter Pincus analyzes the U.S. involvement in Africa and whether the U.S. military is setting a precedent for armed humanitarian intervention.

The Bloomberg editorial board argues that Iraq can become the leader of the Arab community if it makes the right choices about managing its oil reserves.