NSN Daily Update: Will Congress Detain Effective Counterterrorism?

Someone is finally waking up.  We cannot simply legislate the Constitution out of existence.


NSN Daily Update: Will Congress Detain Effective Counterterrorism?





Bipartisan opposition continues to mount to provisions in the defense authorization bill passed by the House and Senate and currently heading to conference. The provisions would mandate military detention and permit indefinite detention of terrorism suspects including American citizens taken in the U.S. and harden restrictions on the transfer of terror suspects. Recent weeks have seen an outpouring of support from conservatives and progressives, lawyers and security professionals, editorial boards and government officials. Adam Serwer writes, “It's official: Just about the only people who think the mandatory military detention provisions in the defense spending bill are a good idea are the congressional legislators trying to show everyone how tough on terror they are.”


Bipartisan political leaders reject false choice between freedom and security. The heads of the Defense Department, FBI, CIA, and Director of National Intelligence have spoken out against the provisions. Bipartisan leaders in Congress have also strongly spoken out:


Senator Rand Paul (R-KY): “Rights given up now cannot be expected to be returned. So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored… [The] legislation would arm the military with the authority to detain indefinitely – without due process or trial – suspected al Qaeda sympathizers, including American citizens apprehended on American soil. I want to repeat that. We are talking about people who are merely suspected of a crime. We are talking about American citizens. If these provisions pass, we could see American citizens being sent to Guantanamo Bay. This should be alarming to everyone because it puts every single American citizen at risk… There is one thing and one thing only protecting innocent Americans from being detained at will by the hands of a too-powerful state: our Constitution and the checks it puts on government power. Should we err and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists will have won.” [Rand Paul, Washington Times, 11/30/11]


Senator Mark Udall (R-CO): “[T]he provisions would require the military to dedicate a significant number of personnel to capturing and holding terrorism suspects – in some cases indefinitely – even those apprehended on U.S. soil. And they authorize the military to do so regardless of an accused terrorist's citizenship, even if he or she is an American captured in a U.S. city… The guilty plea last month by would-be Detroit plane bomber Umar Farouk Abdulmutallab is just one example of law enforcement's critical role in our national security. The last thing we should be doing is preventing local, state and federal authorities from investigating and acting on threats to our safety.” [Mark Udall, Washington Post, 11/28/11]


Editorial boards across the country reject harmful measures. There has been an outpouring of newspapers and editorial boards rejecting the detainee provisions including: The New York Times (10/23/11), Los Angeles Times (10/23/11), St. Petersburg Times (11/7/11), Boston Globe (11/7/11), San Francisco Chronicle (12/1/11), Denver Post (12/01/11), The Register Guard (12/3/11), San Bernardino Sun (12/4/11) and the Philadelphia Inquirer (12/6/11).


National security experts reject detention provisions in the NDAA. A long list of national security experts and practitioners who have publicly spoken out and rejected the detention provisions in the NDAA, including twenty-six retired flag officers, sixteen former interrogators and intelligence officials. A list is available at NSN, 11/29/11:


Matthew Waxman, deputy assistant secretary of defense for detainee affairs in the George W. Bush administration, and John Bellinger III, State Department legal advisor under Condoleezza Rice: “The detainee provisions are apparently intended by their drafters to provide tough counterterrorism powers, but in practice they could have a detrimental impact on U.S. counterterrorism operations. Indeed, while originally drafted by Senate Republicans, these legislative encroachments on the president's authorities would likely have been as strongly opposed by the Bush administration as by the Obama administration. Any president–Democrat or Republican–would object to legislation that interferes this way with his flexibility in conducting the war against al-Qaeda.” [Matthew Waxman and John Bellinger, 12/5/11]


Major General Paul Eaton (ret): “The armed forces are not staffed, trained or equipped to do what our men and women in blue do very well. Our police, FBI and prison system are designed to keep America safe from criminals – a category that includes terrorists. The NDAA provisions do the opposite of making us safer. Our military, interrogation, intelligence and law enforcement leaders have repeatedly expressed their concerns.” [Paul Eaton, 11/29/11]


Richard Clarke, former White House counterterrorism czar: “The phony problem this proposed law is meant to address is the alleged inability of the criminal justice system to deal with terrorism. The truth is that the U.S. criminal justice system dealt very well with terrorism before Sept. 11 and is doing so again now. Terrorists have been regularly arrested by the FBI, prosecuted in federal courts, found guilty by juries and jailed in federal prisons. The list of such cases goes on for pages. The trials have happened all across the country. The system works.” [Richard Clarke, 11/13/11]


Don Borelli, a 25-year veteran of the Federal Bureau of Investigation, where he was assistant special agent in charge in the New York Joint Terrorism Task Force: “It's a mistake to think that indefinite military detention makes us safer. For many of the cases in which I was involved, especially the 'homegrown' cases, the stigma of indefinite military detention at Guantánamo was a major driver in moving people to commit jihad in the first place. … Using law enforcement as a tool in the U.S. counterterrorism toolbox is not only effective, transparent and legal, it has the added benefit of preserving our reputation as a nation built on the rule of law and basic freedoms afforded to all people.” [Don Borelli, 10/26/11]


President Obama, in keeping with past presidents, reaffirms leadership on national security. AP reported last week that, “In a statement, National Security Council spokesman Tommy Vietor renewed the White House threat of a presidential veto of the sweeping $662 billion defense bill that includes the far-reaching policy changes on how to handle suspected terrorists.” Congressional Research Service notes that four out of five of the last presidents have vetoed an NDAA: Carter in 1978, Reagan in 1988; Clinton in 1995; and George W. Bush in 2007.


As Brigadier General David Irvine explains, “Funding national defense is a priority, but that imperative should not become an excuse to close our doors on the world with major policy shifts that could change the character of the country in ways that are antithetical to our values and our national sense of who we are… We should be the land of the free, not the home of the terrified.” [AP, 12/2/11. Nese F. DeBruyne, Congressional Research Service, 5/3/11. David Irvine, 10/27/11]


What We're Reading


Pakistani President Asif Ali Zardari left Pakistan suddenly, complaining of heart pains, and is now in Dubai. His planned testimony before a joint session of Pakistan's parliament on the Memogate scandal is now postponed indefinitely.


A series of mishaps at Iranian nuclear facilities and weapons sites may be part of a covert organized attack on Iran's nuclear weapons program.


Egypt's new prime minister said the ruling army would grant him extra powers and appointed a finance minister along with most other cabinet members, state media reported.


The U.S. ambassador to Syria will return to Damascus, a month and a half after being called home following concerns about his personal safety.


A Saudi prince, in a remark designed to send chills through the Obama administration and its allies, suggested that the kingdom might consider producing nuclear weapons if it found itself between atomic arsenals in Iran and Israel.


Publication of presidential election results in the Democratic Republic of the Congo has been delayed by 48 hours because of technical difficulties, officials say.


Brazil saw its economic growth stall for the three months to the end of September, official figures show.


Chinese and U.S. defense officials met in Beijing to talk about reducing the risk of confrontation after recent friction over arms sales to Taiwan and a stepped-up American military presence on China's edges.


Russia's ruling party won only half of the votes in elections, but opponents say even that poor showing was boosted by widespread fraud. Troops have been sent into Moscow to quell demonstrations, sparking further protests.


Commentary of the Day


Joseph Nye argues that Obama's foreign policy pivot to East Asia is long overdue.


Joost Hiltermann lays out four political and economic challenges facing Iraq after the withdrawal of American troops.


A New York Times editorial remembers and commemorates Pearl Harbor.


The National Security Network's (NSN) mission is to revitalize America's national security policy, and bring cohesion and strategic focus to the progressive national security community. NSN works with a broad network of experts to identify, develop and communicate progressive national security policy solutions.

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