It is usually difficult to find an issue, particularly in the form of current legislation, that unites retired generals and admirals, civil libertarians, Tea Party activists, retired intelligence officers, current Obama administration national-security officials, and former Bush administration officials. But this year's defense authorization bill, which passed both houses of Congress this week, did just that.
The 666-page bill is a vast document that authorizes $662 billion in defense spending for the fiscal year. Nestled in in this overarching bill are a series of controversial provisions that authorize the president to indefinitely detain terror suspects and require the military to take custody of anyone deemed to be a member of al-Qaeda.
The White House issued a veto threat to both the House and Senate versions of the bill. Just about every member of the administration’s national-security team—the director of national intelligence, secretary of defense, secretary of state, CIA director, FBI director, and others—said the bill did not give the president enough latitude to deal with terrorist suspects as he or she sees fit. In order to address the administration’s concerns, Congress inserted loopholes that make some of the law's most extreme requirements optional. While it is curious what an optional requirement will look like in practice, it raises a more fundamental question: What is the point of the provisions in the first place? The changes allowed the president to limit military detention to foreign al-Qaeda operatives and allow for the use of federal courts as a possible venue for terrorism trials. On Wednesday, the Obama administration announced that it would sign the bill into law.
While these changes were meant to provide more flexibility to the administration to conduct counterterrorism operations, the ability to “opt out” of using military detention leaves the potential for each and every international terrorism case to be politicized. It sets up an automatic controversy whenever a noncitizen gets arrested on terrorism charges. As we saw in the aftermath of the attempted "underwear bomber" and the failed Times Square plot, the political environment in the wake of even failed plots is overreaction. This bill will simply arm the president’s political enemies with something to point to for criticism.
One highlight coming out of the final bill is the removal of a new Authorization for Use of Military Force (AUMF). The authorization was passionately championed by Congressman Buck McKeon, a Republican from California and chair of the Armed Services Committee. This would have removed the connection between 9/11 and military action, as dictated by the 2001 AUMF that was passed just days after the 9/11 attacks. The new AUMF would have also expanded presidential authority with complete ambiguity to who the enemy is and what the expiration date is, giving any future president broad powers to engage in military actions without congressional approval.
The debate around this legislation reveals a broader problem with the terrorism detention and prosecution debate. Advocates for military detention claim that military detention and prosecution is better at combating terrorism than civilian trials. But reality does not bear this out. There have been hundreds of successful terrorism prosecutions since 9/11. Those spending the rest of their life behind bars include Faisal Shahzad, who tried to set off a car bomb in Times Square in 2010, Zacarias Moussaoui, an al-Qaeda operative arrested in 2001, and Richard Reid, the so-called shoe bomber. Yet in that same time period, military commissions at Guantanamo Bay have only resulted in six successful prosecutions.
The efforts from lawmakers to keep prisoners at the Guantanamo Bay prison is equally mystifying. America’s civilian prisons are more than capable of handling the worst of the worst—the likelihood of escape is essentially nil. Furthermore, the federal system is not only effective; it’s a bargain when compared to Guantanamo Bay. The average cost at Gitmo is $800,000 per inmate a year, compared with just $25,000 per year in the federal prison.
The proponents of militarizing our judicial system argue that it is tougher on terrorism. The NDAA legislates that view into law. But the record speaks to the contrary. This is not, however, the only reason why there was an outpouring of opposition to the provision in this bill from national-security figures from across the political spectrum. They also recognize that, as two respected retired Marine Generals wrote earlier this week, “American ideals are assets, not liabilities.”