Security experts, policymakers and observers continue to raise concerns about pending portions of the 2012 National Defense Authorization Act (NDAA) that would authorize indefinite detention, mandate military custody of terrorism suspects and impose stringent restrictions on transfer of detainees from Guantanamo Bay. A strong bipartisan consensus has formed among practitioners that, in the words of a former Bush administration official, these provisions "could actually weaken our counterterrorism efforts."

Experts in the Field

Ali Soufan, the former interrogator who revealed that Khalid Sheikh Mohammed was the 9/11 mastermind, recently discussed the NDAA and the utility of federal courts over military commissions with Harper's Magazine: "I know both systems well. I've been the main witness at several trials held in Guantánamo... From experience, I know that federal courts are often better. Part of the reason for this is that the federal system has been used successfully for decades to prosecute international terrorism cases - ever since President Ronald Reagan gave them that authority in the eighties. Since 9/11, hundreds of terrorists have been successfully convicted in federal courts... 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 David Irvine (Ret): "Tucked into the sizable fiscal 2012 defense bill are stealth provisions that, taken together, represent the most radical change of American counterterrorism policy since 9/11. 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. Thankfully, Senate Majority Leader Harry Reid (D-Nev.) took the courageous and unprecedented step of vowing to block the bill because of these abhorrent provisions. He should be applauded for it... 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. Let's hope that the rest of the Senate follows Reid's lead in standing up for these values. We should be the land of the free, not the home of the terrified." [David Irvine, 10/27/11]

Ten former interrogators and intelligence officials: "As former senior interrogators, interviewers, intelligence officials and law enforcement professionals in the United States military, the Federal Bureau of Investigation, the Central Intelligence Agency, and local law enforcement, we 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... Speaking from experience, we can confidently say that forcing law enforcement officials to transfer terrorism suspects into military custody is unnecessary and unwise.  Law enforcement and intelligence officials have a proven track record of handling international terrorism cases, and Congress should not undermine their efforts by taking tools out of the toolbox." [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: "Is Congress about to remove one of the most effective tools in our counterterrorism toolbox? They will if a bill introduced by Arizona Sen. John McCain (R) that is making its way through the Senate is passed. The legislation proposes indefinite military detention for all terrorism suspects, whether they're picked up in East Africa or East Los Angeles, and essentially removes federal prosecution as a viable option. This is a bad idea." He explains, "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. In a letter to Senate Majority Leader Harry Reid, a nonpartisan group of retired generals and admirals write: "[W]e write to applaud your leadership in ensuring that the detainee provisions (Section 1031-1033) in the Senate Armed Services Committee's reported version of the Fiscal Year 2012 National Defense Authorization Act do not move forward. 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. This includes the use of our criminal justice system, which has accumulated an impressive record of success in bringing terrorists to justice. Limitations on that flexibility, or on the availability of critical counterterrorism tools, would significantly threaten our national security." [Letter from 23 Generals and Admirals, 10/7/11]

Major General Paul Eaton (Ret):  "[T]he NDAA furthers the current trend of militarization of our judiciary by institutionalizing the Guantánamo Detention Facility and military commissions. This has three serious problems. First, it keeps in place what remains a superb al Qaeda recruiting tool at Guantánamo. Second, it diminishes the brilliant work our civilian law enforcement team is doing. Finally, it raises the status of those who would blow up our aircraft and public places. They are not warriors. They are criminals." [Paul Eaton, 6/20/11]

Policy Makers

William Sessions, FBI director in the Reagan and George H.W. Bush administrations, and retired judges Abner Mikva and John J. Gibbons: "Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense." They explain that, "We need access to proven instruments and methods in our fight against terrorism. Stripping local law enforcement and the FBI of the ability to arrest and gather intelligence from terrorism suspects and limiting our trial options is counterintuitive and could pose a genuine threat to our national security. Furthermore, an expanded mandatory military detention system would lead to yet more protracted litigation, infringe on law enforcement's ability to fight terrorism on a local and state level, and invite the military to act as law enforcement within the borders of our states." [Abner Mikva, William S. Sessions and John J. Gibbons, 10/7/11]

Juliette Kayyem, former assistant secretary of homeland security: In response to the alleged Iranian terror plot, she writes: "[A]n irony that cannot be ignored is this: As our strongest law enforcement agency was using investigative techniques, the judicial system and good old fashion rule of law, Congress was at the same exact time considering controversial detainee provisions in the 2012 National Defense Authorization Act that would - yes, the irony is deep - remove civilian courts and law enforcement from most counterterrorism efforts." [Juliette Kayyem, 10/11/11]

Lawrence Wilkerson, a retired U.S. Army colonel who served as State Department chief of staff in the Bush administration: "By limiting the use of the traditional criminal justice system -- and, specifically, the unparalleled experience and talent of the FBI and other domestic law enforcement officers -- the defense bill could actually weaken our counterterrorism efforts." [Lawrence Wilkerson, 10/2/11]

Leadership in the Congress and the Administration

Senators from the Select Committee on Intelligence and the Judiciary Committee: Senators Dianne Feinstein, Patrick J. Leahy, Mark Udall, Richard J. Durbin, Ron Wyden, John D. Rockefeller IV, Christopher A. Coons, Al Franken, Barbara A. Mikulski, Bill Nelson, Mark R. Warner, Kent Conrad and Sheldon Whitehouse wrote a letter to Senate Majority Leader Reid calling for the detainee provisions to be removed from the bill. The letter reads, in part: "The Executive Branch must have the flexibility to consider various options for handling terrorism cases, including the ability to prosecute terrorists for violations of U.S. law in Federal criminal courts... if these controversial provisions are enacted, the FBI may have to hand over a terrorism suspect captured in the U.S. - like Najibullah Zazi - to the military in the middle of an interrogation, even if the individual is providing useful intelligence to the FBI about an unfolding terrorist plot. In addition, under these sections, a suspected terrorist captured abroad - such as Ahmed Warsame - may have to be kept in military custody, even if potential charges against the suspect are available only in Federal criminal courts and not military commissions... we do not support provisions that would undermine our Nation's counterterrorism efforts." [Senators' Letter, 10/24/11]

Steny Hoyer, House minority whip: "[T]his bill includes misguided Republican language on detainees, which prohibits their transfer from Guantanamo for any purpose, including trial in Federal court. These trials have proved one of our best resources for bringing terrorists to justice; since the Bush administration, over 400 people have been convicted in Federal court of terrorism-related crimes, including some of the worst of the worst. By depriving us of this option, this language takes away one of the tools in our toolbox in the fight against terrorists. I believe we should not limit the Administration's ability to bring terrorists to justice. [Steny Hoyer, 5/26/11]

John Brennan, deputy national security advisor for homeland security and counterterrorism and career CIA officer recently told an audience at Harvard Law School: "In sum, this approach would impose unprecedented restrictions on the ability of experienced professionals to combat terrorism, injecting legal and operational uncertainty into what is already enormously complicated work." [John Brennan, 9/16/11]

Jeh Johnson, general counsel for the Department of Defense: "The results speak for themselves. Since 9/11 numerous individuals have been convicted of terrorism-related offenses. In the last two years alone we have seen in our federal courts a guilty plea from the man who admitted plotting to bomb the New York subway system, a guilty plea from the man who tried to bomb the commercial aircraft over Detroit on Christmas Day 2009, a life sentence imposed on the individual who attempted to detonate a bomb in Times Square, and a life sentence imposed for the participation in the 1998 bombing of our embassies in Kenya and Tanzania. Going back decades the Department of Justice has successfully prosecuted hundreds of terrorism-related cases." [Jeh Johnson, 10/18/11]

Journalists and Editorial Boards

Boston Globe editorial board: "There is no justification for mandatory military tribunals. Civilian trials are appropriate for many suspects including [Tarek] Mehanna, and help to leverage vast state, local, and federal law-enforcement resources in the fight against terrorism. No effective counterterrorism strategy would sacrifice an effective mechanism that has put many terrorists behind bars. Surely a former military lawyer like Graham knows that there is no problem with the current policy, which assigns suspects to civilian courts or military tribunals based on the particulars of their case, that would justify such a precipitous change. Surely a senator as immersed in foreign policy as McCain knows that the United States could lose the ability to bring overseas terrorism suspects to the United States for trial if allies refused to turn them over to a mandatory military tribunal.

"This whole debate seems contoured mainly for political purposes. If President Obama were to veto the National Defense Authorization Act because of its changes in the treatment of terrorism suspects, Republicans can accuse him of weakening national security. It is a revival of Bush-era tactics designed to make toughness on terrorism into a political wedge, with those concerned about legal processes portrayed as weak. The House and Senate should hold firm against these unnecessary and deeply harmful amendments." [Boston Globe, 11/7/11]

New York Times editorial board: "There are so many terrible things in this bill. Here are just a few of them. It could cripple F.B.I. investigations of terrorism suspects and agents' ability to disrupt plots. It's a step toward making permanent the Guantánamo prison, a blot on America's reputation and an increased danger to any soldier captured in battle. There is no provision for judicial review of the decision to send a prisoner to military detention. The government has mistakenly detained hundreds of men - that we know of - on suspicion of terrorism in the last 10 years. It's unnecessary since civil courts have a track record of success in trying, convicting and sentencing terrorists. The military tribunals created by President George W. Bush and improved by President Obama have a record of failure. The president has the authority needed to detain members of Al Qaeda under the laws of war. This bill extends a power appropriate only for times of actual war to all time and across the entire globe. When the United States is finally restoring its global standing, after the damage of the Bush years, it seems sure to enrage American allies and give new comfort to our enemies...the only one that safeguards American lives and safeguards American values - is to kill it." [NY Times, 10/22/11]

Los Angeles Times editorial board: "The notion that the civilian criminal justice system can't handle terrorism cases is a canard. Defenders of the civilian system point to the guilty pleas of Umar Farouk Abdulmutallab, the ‘underwear bomber,' and Sept. 11 conspirator Zacarias Moussaoui, two of many terrorism suspects successfully prosecuted in civilian court." [LA Times,10/23/11]

What We're Reading

Syrian forces defeated anti-government protestors in Homs after a six-day siege, violating the terms of an Arab League-negotiated truce between President Bashar al-Assad's government and the protestors.

The White House has reduced the number of unmanned drone missions over Pakistan out of concern that the strikes were primarily targeting lower-level militants.

The governor of Iraq's Anbar Province survived an assassination attempt from a homemade roadside bomb, raising concerns about renewed sectarian violence.

Daniel Ortega, leader of Nicaragua's Sandinista National Liberation Front, has won re-election as president of Nicaragua, despite concerns over the legitimacy of his candidacy.

Mexican officials are reporting the arrest of a key deputy to the leader of the Arellano Felix drug cartel, which controls drug trafficking in Tijuana.

Prime Minister Silvio Berlusconi of Italy has been urged by parliamentary allies to step aside as a crucial budget vote nears in the Italian parliament.

Greek leaders are negotiating the leadership of a new coalition government after Prime Minister George Papandreou agreed to step down.

Chinese officials called on Japanese authorities to quickly and appropriately resolve the arrest of a Chinese fishing boat captain who refused to heed a coast guard inspection order in Japan's territorial waters.

Nigeria's national security adviser dismissed a weekend warning from the United States of an Islamist bomb threat to luxury hotels in the capital as "not news," saying it was spreading unnecessary panic.

Protestors in Liberia clashed with UN peacekeepers one day before runoff elections for the Liberian presidency, which is being boycotted by the leading opposition candidate Winston Tubman.

Commentary of the Day

Aaron David Miller outlines five reasons for Israel and the United States not to strike Iran's nuclear facilities preemptively.

Judy Dempsey explores what NATO may look like in the future in the wake of defense spending cuts from its major members, including the United States.

Fareed Zakaria suggests that drawing down on various U.S. military commitments could give us greater flexibility to influence and effect outcomes abroad and return to greater strength at home.