Obama should veto the Defense authorization bill

Last week, the Senate voted to pass a bill that would codify indefinite detention without trial in the United States, mandate military detention for terrorist suspects, and stop the transfer of even innocent detainees out of the Guantanamo Bay and Bagram military prisons.

If that sounds bad enough, just wait:  As we head into the holidays, the bill could get even worse. This week, the National Defense Authorization Act, or NDAA, goes to conference, where the House and the Senate will try to reconcile a bad bill with a worse one.  Expect an even harsher, broader-reaching and more nonsensical bill in time for Christmas.

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The House version of the National Defense Authorization Act, approved last May, would: Expand the "war on terror" to target a far broader array of unnamed foreign terrorist groups and their supporters, unlinking it from the 2001 September 11 attacks to effectively guarantee a war without end; and require that anyone suspected of a terrorism-related offense be tried – if not simply detained indefinitely -- in Guantanamo Bay military commissions, the makeshift courts held on the remote military base in Cuba where the U.S. military has so far won only six convictions since they were created in 2001. Half of the convicted are already released.

And as Scott Shane explains in Sunday’s New York Times, they’ve been far less effective than the regular U.S. federal courts, where more than 400 people have been convicted on terrorism charges in the same time period.

Imprisoning suspects at Guantanamo costs more than $800,000 each – as compared to $23,000 in the U.S. federal prison system. Shane’s article underscores the question that many policy experts have been wondering lately: why are lawmakers pushing this outcome when the overwhelming majority of experts on the issue, including those who’d have to carry out the law, so strongly oppose it?

Defense Secretary Leon Panetta, CIA Director David Petraeus, FBI Director Robert Mueller, and Director of National Intelligence James Clapper have all publicly opposed the bill.

Last month, a bipartisan group of 26 retired generals and admirals wrote that the legislation “both reduces the options available to our Commander-in-Chief to incapacitate terrorists and violates the rule of law” and “would seriously undermine the safety of the American people.”

The National Journal recently reported that the majority of its bipartisan “National Security Insiders” likewise oppose the defense bill. Even prominent Bush administration lawyers John Bellinger and Matthew Waxman have warned Congress not to pass it.

As with so much of what’s coming out of Washington these days, the Congressional sausage-grinder is making politics, not sound national policy.


President Obama has threatened to veto both the House and Senate versions of the bill.  But will he be willing to nix a broad-ranging defense bill in an election year? He should.

The actual impact of vetoing a defense authorization bill is minimal. Four presidents –including Ronald Reagan and George W. Bush -- have done it in recent decades. The government will still pay the troops and spend what’s necessary to sustain the military; the NDAA is only designed to authorize new programs. And the president consistently polls far higher than Congress does on national security. Still, the administration may try to get Congress to tweak parts of the bill to make it less noxious and give the executive branch more room to maneuver.

That’s not good enough.  Minor tweaks to the bill won’t cure the obvious constitutional defects of allowing the U.S. military free reign to capture and imprison people indefinitely on U.S. soil.  It won’t stop the expansion of the war on al Qaeda and the Taliban far beyond where it was intended to go, reaching unnamed groups who lawmakers say may be lurking here in the United States, which would now become part of the battleground. It won’t cure the problem of denying due process to Americans and foreigners alike, for an indefinite period that has no logical end, based on mere suspicion of terrorist ties.

And it won’t change the fact that the Guantanamo Bay detention center, and Bagram -- the “other Guantanamo” where the U.S. military imprisons some 3000 men without trial in Afghanistan -- will be stuck holding thousands of suspects indefinitely because U.S. authorities won’t be allowed to transfer them. That could hamper the military’s ability to withdraw from Afghanistan.

Finally, it won’t change the fact that other countries such as Germany and the UK have said they won’t transfer suspected terrorists or even share intelligence about them if they know they’ll land in U.S. military custody.

President Obama will soon have an opportunity to take a stand against the politicization of national security and for the saner, wiser approach that most real experts support. The world is watching.

Eviatar is a senior associate in the law and security program of Human Rights First, which has been monitoring U.S. military detention practices since 2002.