by Stephen C. Lessard, Esq.
On October 3, Senate Majority Leader Harry Reid (D-NV) vowed to block a vote on this year's National Defense Authorization Act (the "NDAA") because of provisions in the bill that the Obama administration says will tie its hands when dealing with terrorism suspects. Senator Reid explained his move on the Senate floor, noting that the authorization bill contains provisions relating to the detention of terrorism suspects that in the words of National Security Adviser John Brennan would be "disastrous" and would "tie the hands of our counterterrorism professionals by eliminating tools and authorities that have been absolutely essential to their success." The next day, Senator Reid sent a letter to the Armed Services Chairman Carl Levin (D-MI) and Ranking Member John McCain (R-AZ) informing them that he didn't intend to bring the NDAA to the floor until it was stripped of the detention provisions. Reid specifically objected to the authorization of indefinite detention, the requirement for mandatory military custody of terrorism suspects, and the stringent restrictions on transfer of detainees.
Support for Senator Reid's position has been voiced by military and legislative sources. On October 7, a nonpartisan group of 23 retired generals and admirals sent a letter to Senator Reid warning that the defense bill would "authorize the indefinite detention without trial of terrorism suspects, including American citizens captured on U.S. soil--a policy that is contrary to the very American values needed to win this fight." Pentagon General Counsel Jeh Johnson made statements on October 18 in opposition to troubling provisions in the NDAA and urged Senator Reid to stand firm in refusing to bring the bill to the floor unless the controversial measures are removed.
In a letter sent to Senator Reid on October 21, several Democratic members of the Judiciary Committee and the Select Committee on Intelligence asked Senator Reid to work toward ensuring that the annual defense authorization bill does not contain provisions that would outlaw trials for terrorist suspects in federal courts, and make permanent strict requirements for transferring prisoners out of Guantánamo Bay. In addition to arguing that the provisions could interfere with counterterrorist operations by federal law enforcement officials, the senators also claimed that the provisions could allow for the indefinite detention of American citizens without charge or trial.
Human Rights Watch, along with the American Civil Liberties Union and Human Rights First, recently urged Congress to reject the provisions in the defense spending bill that would permit long-term indefinite detention without trial of terrorism suspects. The groups released a video on October 24 showing that such legislation would repeat broadly recognized mistakes of the past, making reference to the detention of American citizens with Japanese heritage during World War II and the Emergency Detention Act passed in 1950, during the rise of McCarthyism, authorizing detention of people who had not actually committed any act but who would "probably" engage in "acts of espionage or of sabotage."
Brigadier General David R. Irvine, who taught prisoner of war interrogation and military law at the Sixth U.S. Army Intelligence School, views the proposed legislation as the militarization of the U.S. justice system. He believes the push to militarize the judicial system may spring from "a distrust of presumably squishy judges or an assumption that the nation must wage a military war on terror." He also fears that passage of such legislation will "bolster the claims of tyrants that their tools--military tribunals and imprisonment without criminal charges--are, indeed, a society's only sure protection."
However, New Hampshire Republican freshman Senator Kelly Ayotte was not deterred by Senator Reid's action blocking her amendment to the NDAA that would have barred the government from spending money to try enemy combatants. She is now pursuing an amendment to the bill that would make federal trials more difficult by creating a presumption that the military, not civilian authorities, should hold suspected al Qaeda members. Senator Ayotte said the measure would help move the administration away from civilian trials and allow more suspects to be tried in front of military commissions. Senator Ayotte believes the Obama administration has mistakenly "tried to criminalize the war," and that "[t]he priority has to be in these types of cases gathering intelligence" and civilian courts are not "set up for intelligence collection."
The issue has also exposed divisions within the Democratic Party. The Senate Armed Services Committee approved the defense bill in June and the panel, led by Democratic Senator Carl Levin, approved the provision on military custody on a 25-1 vote. Levin has argued that the provision included a national security waiver that the administration could exercise to bypass the requirement.
For this blog's sources and more information, see:
Roll Call - David R. Irvine, Reid Must Block Militarization of Justice System (Oct. 27, 2011)
Trust.org - US: Rights Groups Urge Rejection of Indefinite Detention Legislation (Oct. 24, 2011)