Changes to the National Defense Authorization Act: Are They Enough?

Dec 15 2011 Published by under Uncategorized

The House-Senate conference committee supposedly revised the National Defense Authorization Act in order to address concerns of the President that led to his threat to veto certain sections within the act. Since these changes were made, we’re getting signals that President Barack Obama won’t veto it now, so let’s go over the issues with this bill and the changes that were made.

The President’s objections in part (emphasis mine):

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

At issue is a section giving the President “the authority to indefinitely imprison people, without charge or trial, both abroad and inside the United States and would mandate military detention of some civilians who would otherwise be outside of military control.”

Lawmakers added language regarding national security waivers intended to get the President’s support for the bill as a whole. However, Senator Levin says the bill is still 98% of what it was (the sections at issue were relatively small sections). Huffington Post reported:

“I assured the president that we were working on additional assurances, that the concerns were not accurate,” Senate Armed Services Committee Chairman Carl Levin, D-Mich., who spoke to Obama last week, told reporters at a news conference. “That we’d do everything we could to make sure they were allayed, and met.”

However, at a Senate Judiciary Committee hearing, the FBI’s Robert Mueller said he is not fully satisfied with the changes:

“The drafters of the statute went some distance to resolving the issue related to our authority but the language, but did not really fully address my concerns….” Mueller said during questioning by Sen. Dianne Feinstein (D-Calif.), who opposes the detainee-related language in the bill. “I was satisfied with part of it with regard to the authority, I still have concerns and uncertainties that are raised by the statute.”

Mueller said he fears that the legislation would muddle the roles of the FBI and the military.

That’s not comforting. While Obama has established civilian courts as the default for terrorism cases, he’s been stymied by congress refusing to fund his executive order closure of Gitmo as well as the fact that he leaves room for the Justice and Defense departments to weigh in and send terror suspects the military route.

With the NDAA, the default will be the military route.

Rep. Adam Smith of Washington state, the top Democrat on the House panel, told reporters, “We took significant steps to address the administration’s concerns.”

According to Huff Po:

“(L)awmakers 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.

Bingo: And that is the problem, because thanks to Bush’s Department of Homeland Security broad definition of a terrorist, it would be easy to abuse the law and detain non-terror suspects.
So, even if you agree that the world has changed post-9/11 and we need the extra security and it’s worth the loss of freedom, we are still left with the problem that according to the Department of Homeland Security’s broad definition of a terrorist, bombers of abortion clinics could find themselves held without a trial. (While I might enjoy this in my fantasy world, we can see the problems this would create – where do we draw the line?)

Several of the changes made address many of the President’s over-arching concerns, but we are left with the militarization of our justice system and the ability to deny US citizens who are terror suspects the right to a trial.

So, what if you don’t agree that the loss of freedom is worth “keeping us safe.”

What if you question if the loss of freedom has kept us safe?

Interestingly, Obama’s counterterrorism approach has been more successful than Bush’s by any regard and yet the Senate seems determined to keep pushing for the Bush way via the militarization of justice. The assumption that this will keep us safe has not born out to be true; however, they may have other reasons for pushing us closer to a military state, but what are they?

Let’s examine the two approaches for a minute.

Obama has had a more constitutional approach when it comes to counterterrorism and homeland security than Bush, who routinely disregarded the need for congressional oversight in regards to the Patriot Act.

Obama’s policy has focused on multilateralism rather than unilateralism and efforts to work within U.S. and international law. Even prior to being taking office as President he has been consistent as being against torture and for civil liberties. Obama opposed the 2006 Military Commissions Act that helped establish military tribunals to try terror suspects among other egregious wrongs and is consistently on record as opposed to torture.

Obama’s successes in eliminating Osama bin Laden and other major terrorist leaders should give his policy more weight in that he was successful, contrary to Republican hawks’ seven years of failed military effort to capture Osama, and yet Republicans say we are under threat here in the US and that the President hasn’t done enough to keep us safe.

Pardon me, but where is the proof that we are under siege? I recall asking that in 2002 and 2003 in the lead up to the invasion of Iraq to no avail, and so I would like some proof of this. No doubt terrorists are plotting against America right now, but the Obama approach has successfully foiled many such plots already; in fact, he has kept us safer than Bush did.

We also know that this president actually informs himself about the realities of the threats to this country. Therefore, if he finds a section of the NDAA egregious enough to want to veto it, it implies that he does not think it is necessary in order to keep us safe. He is saying that he thinks the value of civil liberties outweighs the alleged value of the “safety” the militarization of justice will provide.

If he thinks that, then the likelihood that the Senate has some great reason for this that they simply won’t tell us diminishes.

So I’m left again with why?

Why should we trust the Senate to continue chipping away at the very foundation of this country’s justice system, when they have given us no good reason for doing so? Yes, they have made some changes to the language and addressed some of the concerns, but this bill was written poorly and is more a nod to Bush’s disdain for civil liberties than to Obama.

Fear is leading the show. At what price? Even if this were contained to terror suspects, we are given no reason for why a majority of our own Senators, including Senator Levin who has been a reasonable person in the past, are pushing so hard for giving more power to the military and leaning away from Obama’s policy of civilian courts.

Until the Bushian language in the Department of Homeland Security is changed and First Amendment rights clarified per the DHS, it’s troubling to see our elected officials moving in this direction – and never giving us a reason why.

Just where do we draw the line when it comes to how we want this country to operate? When a few are denied their rights as citizens, what does that say about our system?

They say they need the power of the military courts and are trying to appease our concerns that they could use this against US citizens by claiming they will only use it against US citizens who are terror suspects.

Which takes us right back to the heart of the problem. Who and what define a terror suspect and who is looking out for our first amendment rights?

If I could push back on anything right now, I wouldn’t start with this particular act, but rather with Bush’s Department of Homeland Security’s First Amendment policies and their definitions of terrorism suspects.

Lastly, with the President being against these provisions and having access to more information than the Senators in terms of national security threats, I want to know why they are pushing us away form civilian trials and toward a militarization of justice. I want to know why, and I want them to explain to the American people exactly how this would keep us safer and why we should believe them, when so far, the President has shown that his approach is much more effective, less costly in terms of human lives and less of an encroach upon civil liberties.

Yes, that’s right. The words “war on terror” aren’t enough, elevated threat levels weren’t enough, and telling us we need this isn’t enough. Because it looks to me as if the Democratic Senators who joined the Republican authoritarians on this are still cowering in fear of being accused of being “soft on terror.” Someone needs to tell our Democratic Senators that Obama got Osama, so they can stop pretending war is patriotism every time they’re up for election.

Even though this is just an appropriations bill – the yearly defense appropriations bill – and a poorly written one at that, it takes us in the wrong direction. Much of the egregious language has been changed from the two sections at issue, but we should all be asking why it was written this way in the first place and why Democrats are abandoning Obama’s move toward civilian courts once again.

For more information on specific language in the revised version, see here. To read Obama’s objections to original version via the SASC, read here. To read Obama’s full response to the original, read here.

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