Deal or No Deal?

November 16, 2011

Efforts to pass the 2012 National Defense Authorization Act (NDAA), the comprehensive defense spending bill for the year, have been slowed by debate over controversial provisions moving most phases of terrorism prosecutions from law enforcement to the military. Yesterday, Senators Carl Levin (D-MI) and John McCain (R-AZ), the chairman and ranking member of the Senate Armed Services Committee, announced they had reached a deal to move the bill forward. Inexplicably, however, the deal did not address the concerns with the legislation that have been expressed by bipartisan national security experts, the Pentagon and other relevant security-related committees. Pentagon and outside leaders immediately noted that the “deal” fails to address ley legal and practical problems with the measure and suggested that it, in the words of NSN Senior Adviser Major General (ret.) Paul Eaton, “undermines the capabilities” of the executive branch to combat terrorism.

Tentative deal does not address Pentagon, law enforcement concerns. Both the Pentagon and leaders in the Senate responded swiftly to yesterday’s announcement. Senators Feinstein and Leahy, chairs of the Intelligence and Judiciary committees, wrote: “Regrettably, the so-called ‘agreement’ reached today in the Senate Armed Services Committee will only harm the efforts of intelligence and law enforcement officials to bring to justice those who would harm Americans here and abroad. The bill reported by the Armed Services Committee today does little to resolve our stated concerns and those of the administration about mandatory military custody, including the potential for this bill to create operational confusion and problems in the field.”

In a letter, Secretary of Defense Leon Panetta further condemned the new language saying the provisions restrain “the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.” And that it may “needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.” [NY Times, 11/15/11. Dianne Feinstein and Patrick Leahy, 11/16/11. Leon Panetta, 11/15/11]

National security practitioners agree: provisions are harmful to our national security.

Major General (ret.) Paul Eaton: “The militarization of our justice system is neither illustrative of American values nor desired by military leaders. Instead, it undermines the capabilities of our superb civilian law enforcement professionals who are successfully fighting terrorism and gives undue ‘warrior’ status to the criminals who choose to attack us. It appears that this deal resolves neither the principles at stake nor the practical questions around assigning the U.S. military full responsibility for terrorism suspects.” [Paul Eaton, 11/15/11]

Ali Soufan, the former FBI interrogator who revealed that Khalid Sheikh Mohammed was the 9/11 mastermind,  discussed the NDAA with Harper’s Magazine: “Those best suited to judging the venue are the prosecutors building the case and the agents and analysts who collected the evidence and gained the confessions. The proposed measures would unnecessarily tie these people’s hands. The threat never to hold trials for some suspects is similarly a mistake. To give one example of why this would be shortsighted, very few foreign legal systems would permit governments to hand over a detainee in the absence of a trial.” [Ali Soufan, 11/1/11]

Brigadier General (ret.) David Irvine who taught prisoner of war interrogation and military law at the Sixth U.S. Army Intelligence School: “These policies will not make us safer. They will undermine our national security and make the United States a very different country than the city on the hill that American leaders such as President John F. Kennedy and President Ronald Reagan both exhorted it to be.” [David Irvine, 10/27/11]

Ten former interrogators and intelligence officials: “[W]e oppose legislation that would require military detention of terrorism suspects.  Cutting out law enforcement from domestic and international counter terrorism operations would seriously undermine the ability of professional law enforcement and intelligence officials to conduct interrogations of terrorism suspects and gather actionable intelligence information.” [Letter, 2011]

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]

Twenty-three retired generals and admirals. A nonpartisan group of retired generals and admirals write: “If passed, we believe these provisions would reshape our counterterrorism policies in ways that would undermine our national security and transform our armed forces into judge, jury and jailor for foreign terrorism suspects… For that reason, we have been advocating against these provisions, and agree with your statement that our nation:  “must maintain the capability and flexibility to effectively apply the full range of tools at our disposal to combat terrorism.’” [Letter from 23 Generals and Admirals, 10/7/11]

What We’re Reading

President Hamid Karzai of Afghanistan convened a traditional “loya Jirga” meeting to discuss the future of negotiations with the Taliban and a long-term security agreement with the United States.

Pakistan’s former defense minister Shah Mehmood Qureshi announced he may join a new opposition party led by Imran Khan to challenge President Asif Ali Zardari.

Syrian army defectors reportedly attacked a military base home to Syria’s Air Force Intelligence, a military unit believed to be instrumental to the attacks on anti-government protestors.

Mario Monti won a confidence vote to become Italy’s new prime minister, as bond yields for Italian debt remained at dangerously high levels amid concerns of a French credit downgrade.

Secretary of Defense Leon Panetta defended the administration’s decision to withdraw U.S. forces from Iraq by December 31 before the Senate Armed Services Committee, amid sharp criticism from Ranking Member John McCain.

The Senate Armed Services Committee voted to approve $27 billion in cuts to the defense budget for fiscal year 2012, consistent with the provisions of the Budget Control Act.

Tunisia’s two leading parties in parliament chose Moncef Marzouki, a human rights activist, as the new interim president of Tunisia, as a new constitution is being written.

The presidents of Sudan and South Sudan predict a new war in a disputed oil-rich region that has seen a spike in cross-border attacks.

Colombia’s FARC guerrillas named Timoleon Jimenez, a hard-liner known as Timochenko, as their new leader after Colombian forces killed his predecessor.

The U.S. has deepened military ties with Asia in the past year, at once reassuring its partners of its commitment and capitalizing on mutual fears about China’s rise.

Commentary of the Day

Brigadier General (ret.) John Johns writes that presidential candidates should desist from peddling the false notion of a simple “surgical” strike on Iran and answer the hard questions.

Rami Khouri analyzes the link between the resurgence of Arab League and the revival of Arab sovereignty.

The New York Times editorial board calls on the Egyptian military administration to support elections that will reassert civilian control in Egypt, emulating the experience of Tunisia.

Robert Samuelson discusses why the International Monetary Fund should become more involved in the European debt crisis, though cautions that the IMF alone could not stop a European debt collapse.

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