The 2012 National Defense Authorization Act (NDAA) is currently being debated on the Senate floor. An unprecedented array of security and military experts has raised concerns about portions of the bill that would authorize indefinite detention, mandate military custody of terrorism suspects and impose stringent restrictions on transfer of detainees from Guantanamo Bay. The bipartisan consensus opposing those provisions includes the head of the FBI, the Director of National Intelligence, the secretary of defense, 26 retired generals and admirals, senior interrogators and counterterrorism officials from the Bush, Clinton and Obama administrations.  Senators Mark Udall (D-CO), Jim Webb (D-VA) and Rand Paul (R-KY) are sponsoring an amendment that would strip the bill of these provisions, which is expected to be voted on today. As one former Bush administration official said, these provisions "could actually weaken our counterterrorism efforts."

Current National Security Practitioners

FBI Director Robert Mueller: "I am writing to express concerns regarding the impact of certain aspects of the current version of Section 1032 of the National Defense Authorization Act for Fiscal Year 2012. Because the proposed legislation applies to certain persons detained in the United States, the legislation may adversely impact our ability to continue ongoing international terrorism investigations before or after arrest, derive intelligence from those investigations, and may raise extraneous issues in any future prosecution of a person covered by Section 1032... We appreciate that Congress has sought to address our concerns in the latest version of the bill, but believe that the legislation as currently drafted remains problematic for the reasons set forth above." [Robert Mueller, 11/28/11]

Director of National Intelligence James Clapper: "Taken together, the various detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks." [James Clapper, 11/23/11]

Secretary of Defense Leon Panetta: 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 it may "needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States." [Leon Panetta, 11/15/11]

John Brennan, deputy national security advisor for homeland security and counterterrorism and career CIA officer: "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]

Experts in the Field

Twenty-six retired generals and admirals. In a letter calling for support of Senator Udall's amendment the retired military leaders write: "There should be no disagreement that legislation which both reduces the options available to our Commander-in-Chief to incapacitate terrorists and violates the rule of law would seriously undermine the safety of the American people. We appreciate that our leaders are constantly striving to make America more secure, but in doing so, we must be careful not to overreact and overreach, resulting in policies that will do more harm than good. At the very least, the current detention provisions merit public debate and should not be agreed to behind closed doors and tucked into legislation as important as our national defense bill" [Letter from 26 Generals and Admirals, 11/28/11]

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]

Sixteen 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]

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]

Bipartisan Leaders and Experts

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 Sessions and John 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]

Leaders in Congress

Sen. Mark Udall: "Our law enforcement, military and intelligence workers have spent more than a decade carefully and collaboratively determining how to work together in the war against terrorism. But these proposed changes would require the military to take on a new responsibility as police, jailors and judges - jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil." [Mark Udall, 11/28/11]

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]

Rep. 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]

What We're Reading

In the latest sign of deteriorating relations with the West, around 20 Iranian protesters entered the British Embassy compound in Tehran on Tuesday, chanting "death to England," tearing down a British flag and ransacking offices.

A second day of voting is taking place in Egypt in the first elections since President Hosni Mubarak was overthrown, with indications of a high turnout in Cairo and other big cities.

A United Nations commission investigating allegations of human rights violations in Syria says Syrian forces committed crimes against humanity during the government's ongoing crackdown.

Rockets fired from Lebanon struck northern Israel for the first time in more than two years, drawing a burst of Israeli artillery fire across the tense border.

Kuwait's prime minister and his government resigned in response to escalating demands by protesters and opposition deputies that he step down over corruption allegations.

Drawdown plans announced by the U.S. and more than a dozen other nations will shrink the foreign military footprint in Afghanistan by 40,000 troops at the close of next year, Afghan forces increasingly on the frontlines of the decade-long war.

A large explosion has been reported in the Iranian city of Isfahan as the regime issued conflicting reports apparently designed to deny any suggestions of a sabotage attack on its nuclear facilities.

Elections in the Democratic Republic of the Congo will be extended in certain wards to permit more Congolese to cast ballots amid violence and voting irregularities.

Somalia's al-Shabab militants shut down 16 more aid operations yesterday in armed raids, including UNICEF's Somalia branch.

President Obama met with European Union leaders at the White House to discuss the future of the euro monetary union, as the EU sovereign debt crisis grows deeper.

Commentary of the Day

Daniel Drezner says that in the GOP race to take on Obama, playing dumb about foreign affairs is the politically clever thing to do.

Peter Beinart discusses President Obama's foreign policy and likens it to offshore balancing, an affordable strategy of maintaining our naval and air power while strengthening smaller nations.

A Der Spiegel editorial explains that fear is spreading through the financial markets as investors pull their money out of the crisis-stricken euro-zone countries and that the monetary union appears increasingly in danger of breaking apart.