Overnight Defense: House chair announces contempt proceeding against Pompeo | Top general says military has no role in election disputes | Appeal court rejects due process rights for Gitmo detainees

Overnight Defense: House chair announces contempt proceeding against Pompeo | Top general says military has no role in election disputes | Appeal court rejects due process rights for Gitmo detainees
© Greg Nash

Happy Friday and welcome to Overnight Defense. I'm Rebecca Kheel, and here's your nightly guide to the latest developments at the Pentagon, on Capitol Hill and beyond. CLICK HERE to subscribe to the newsletter.

THE TOPLINE: The chairman of the House Foreign Affairs Committee will launch contempt proceedings against Secretary of State Mike PompeoMike PompeoNo time for the timid: The dual threats of progressives and Trump Psaki: Sexism contributes to some criticism of Harris Mnuchin, Pompeo mulled plan to remove Trump after Jan. 6: book MORE, the lawmaker said Friday.

Chairman Eliot EngelEliot Lance EngelLawmakers pay tribute to Colin Powell NYC snafu the latest flub from a broken elections agency Cynthia Nixon backs primary challenger to Rep. Carolyn Maloney MORE (D-N.Y.) announced the committee will begin drafting a resolution to hold the secretary in contempt following his refusal to provide subpoenaed documents related to an investigation into whether he has misused government resources for political reasons.

Engel said Pompeo’s refusal to comply with the subpoenas left him no choice but to initiate contempt proceedings.

“The Secretary’s ongoing defiance of two duly authorized subpoenas on matters directly linked to American foreign policy toward Ukraine has left the committee no further option but to begin drafting a resolution finding Secretary Pompeo in contempt of Congress,” Engel said in a statement.

“He seems to think the office he holds, the department he runs, the personnel he oversees, and the taxpayer dollars that pay for all of it are there for his personal and political benefit,” he added.

Background: The accusations of contempt are related to two subpoenas. The first stretches back to a September request to the State Department for documents related to the House impeachment investigation into President Trump’s withholding of military assistance to Ukraine.

The second subpoena is related to tens of thousands of documents that the State Department has provided to two Republican-controlled Senate committees related to their investigation of former Vice President Joe Biden’s diplomacy in Ukraine during the Obama administration.

House vs. Senate: Engel said Pompeo was willing to work with the GOP-led investigations in the Senate as Republicans seek to “amplify [Russian President Vladimir] Putin’s debunked conspiracy theories” about President TrumpDonald TrumpPence: Supreme Court has chance to right 'historic wrong' with abortion ruling Prosecutor says during trial that actor Jussie Smollett staged 'fake hate crime' Overnight Defense & National Security — US, Iran return to negotiating table MORE’s political foes, while refusing to provide the same information to his panel.

Engel argued that Pompeo is helping both the Republican-led Senate and Russia’s agenda to sow discord in the 2020 election by spreading unsubstantiated claims about the Bidens.

In a 45-page letter to the House committee last week rejecting the subpoena, the State Department maintained it is not obligated to produce the documents because the panel is investigating Pompeo, not allegations against Biden.

Engel called the response an attempt to get his committee to support a conspiracy theory against the Democratic presidential nominee.

“Mr. Pompeo’s final response makes it clear where he stands: the Department would turn over the documents if the Committee announced that we, too, were pursuing an investigation into the same conspiracy theory that’s been debunked again and again,” he said.

NO ROLE FOR MILITARY IN ELECTION, MILLEY SAYS: The U.S. military will play no role in resolving any dispute about the election, the country’s top general said in written testimony released Friday.

“In the event of a dispute over some aspect of the elections, by law U.S. courts and the U.S. Congress are required to resolve any disputes, not the U.S. military,” Joint Chiefs of Staff Chairman Gen. Mark Milley wrote. “I foresee no role for the U.S. Armed Forces in this process.

“I and every member of the Armed Forces take an oath to support and defend the Constitution of the United States, and to follow the lawful orders of the chain of command,” he continued. “We will not turn our backs on the Constitution of the United States.”

Milley’s comments came in response to questions for the record from Reps. Elissa SlotkinElissa SlotkinTaiwan says it is capable of responding to repeated Chinese military missions Five House members meet with Taiwanese president despite Chinese objections US lawmakers arrive in Taiwan to meet with local officials MORE (D-Mich.) and Mikie SherrillRebecca (Mikie) Michelle SherrillDegrees not debt will grow the economy Abortion rights group endorsing 12 House Democrats Democrats at odds over SALT changes MORE (D-N.J.) that the pair had submitted to him after a House Armed Services Committee hearing last month.

The same questions were sent to Defense Secretary Mark EsperMark EsperThe Hill's Morning Report - Presented by Facebook - Biden to update Americans on omicron; Congress back Former defense secretary Esper sues Pentagon in memoir dispute Overnight Defense & National Security — Presented by Boeing — Major Russia weapons test stokes tensions MORE, but the lawmakers said he has not responded yet.

Context: Milley’s answers do not depart from long-standing views in the military about remaining apolitical. Earlier this month, the Pentagon’s top spokesman dismissed debate about military involvement in the election as "unserious thought."

But the answers come as the candidates in the 2020 president election themselves stoke questions about military involvement.

President Trump has raised the prospect that he won’t accept the results in November, claiming that mail-in voting could lead to widespread voter fraud despite offering no supporting evidence.

“I have to see,” Trump told Fox News’ Chris WallaceChristopher (Chris) WallaceBret Baier confirms his 'concerns' about Tucker Carlson's Jan. 6 documentary Rittenhouse says Biden defamed his character Surgeon general warns of uptick in COVID-19 cases as cold weather arrives MORE last month when asked if he would accept the election results. “No, I’m not just going to say yes, I’m not going to say no, and I didn’t last time either.”

Democratic presidential nominee Joe BidenJoe BidenDearborn office of Rep. Debbie Dingell vandalized Pfizer to apply for COVID-19 booster approval for 16- and 17-year-olds: report Coronavirus variant raises fresh concerns for economy MORE said in June that he’s "absolutely convinced" the military would step in if Trump rejected the results.

"I promise, I am absolutely convinced they will escort him from the White House with great dispatch," Biden said on "The Daily Show with Trevor NoahTrevor NoahOvernight Energy & Environment — Presented by the American Petroleum Institute — Dems vow to keep emissions cuts Monica Lewinsky: 'The idea that I bore more responsibility' than Clinton is 'insane' Fox's Gutfeld mocks late night hosts for planned 'climate night' MORE."

NO DUE PROCESS RIGHTS FOR GITMO DETAINEES, APPEAL COURT RULES: A federal appeals court ruled Friday that foreign detainees at Guantanamo Bay do not have the right to make due process claims in court.

The decision from the three-judge panel on the D.C. Circuit Court of Appeals ruled that the Due Process Clause of the Constitution does not apply to those held at the military base.

Judge Neomi Rao, who was appointed to the court by Trump, wrote in the decision that "the Due Process Clause may not be invoked by aliens without property or presence in the sovereign territory of the United States."

The decision rejects the appeal of Abdulsalam Ali Abdulrahman al Hela, a Yemeni citizen who has been detained at the U.S. military base in Cuba since 2004. A district judge last year denied al Hela's habeas corpus petition challenging his detention at the facility.

"We think the decision is incorrect and we're considering our options," David Remes, al Hela's attorney, told The Hill on Friday. "The fundamental injustice at Guantanamo is holding individuals indefinitely without a charge. That's the ultimate problem that needs to be addressed."

What it means: Friday's decision would likely be the most categorical denial of legal rights for Guantanamo detainees in nearly two decades of court battles over the military prison.

Tung Yin, a law professor at Lewis & Clark College in Oregon who studies legal issues concerning national security and terrorism, said the significance of the ruling may largely be symbolic given the alternative administrative procedures outside of the court system for reviewing detainees' cases that were set up by Congress.

"In one sense, it's pretty significant in terms of the boldness of the holding," Yin said. "But in another sense, the practical effect of it is probably not really that strong because President Obama whittled down pretty greatly the number of detainees who are left in Guantanamo."

Still, the ruling is likely to intensify criticism of the controversial prison, where 40 detainees are still being held despite not being charged with a crime.

"The decision is a misguided attempt to resurrect Guantanamo as a prison outside the law," Jonathan Hafetz, a senior staff attorney with the American Civil Liberties Union, said in a statement. "The fundamental guarantees of due process unquestionably apply to individuals the U.S. has imprisoned for nearly two decades at an island prison, and it is an affront to the Constitution to suggest otherwise."

ON TAP FOR TOMORROW

Democratic presidential nominee Joe Biden will speak at the virtual National Guard Association of the United States General Conference at 1:45 p.m. Other speakers at the conference include National Guard Bureau chief Gen. Daniel Hokanson, Air Force Chief of Staff Gen. Charles Brown and Chief of Space Operations Gen. John Raymond. https://bit.ly/3lAMaDt

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