5 Key NDAA Amendments to Watch For

This is a cross-post from Just Security.

Congress is considering the National Defense Authorization Act this week, and several proposed amendments in the House to this annual authorization bill would have significant ramifications for U.S. national security and human rights policy, if passed. Since this tends to be a quick and dirty process that most people don’t realize is even happening, I’m flagging here five important proposed amendments that should interest Just Security readers.

1. The “War on Benghazi” Amendment

First, you’ll be glad to know that we’re not going to war with Libya. What was originally a proposed new Authorization for Military Force to go after the terrorists who attacked the U.S. embassy in Benghazi has been turned into a relatively meaningless “sense of Congress” that the United States probably should be going to war against those attackers but for now has to provide a detailed report on what it’s doing about them.

Specifically, the amendment, proposed by Rep. Duncan Hunter of California, would express the sense of Congress that 1) the perpetrators of the Benghazi attack pose a continuing threat to U.S. national security; 2) that failure to hold anyone responsible for the attack undermines U.S. national security; and 3) the uncertainty surrounding the President’s authority to use force against those responsible for the attack undermines the President as Commander-in-Chief. The Amendment further requires a report on the identities and locations of the perpetrators of the attack, the actions taken to kill or capture them, and a determination of whether the President has the authority to use the Armed Forces against them. Finally, the Amendment requires submission by the administration to the appropriate congressional committees a comprehensive strategy to counter the growing threat posed by radical Islamist terrorist groups in North Africa, West Africa, and the Sahel.

While the Benghazi attack was terrible and tragic, it does not rise to the level of an armed conflict against the United States. An armed attack is therefore not an good response, both as a policy matter and because it would violate international law. There have been lots of attacks against U.S. assets overseas in the past, and there will surely be more in the future. None has ever required the United States to call up its wartime authority, and if it did, we’d be engaged in a very long war indeed.

Even under an AUMF, an operation aimed at killing the Benghazi perpetrators, without a showing that the perpetrators pose an imminent threat to the United States—would be unlawful under international law. An operation to capture them for trial, on the other hand, could be legal under existing authorities.

This notion that we needed to go to war on Benghazi all came about after General Martin Dempsey, Chairman of the Joint Chiefs of Staff, testified behind closed doors to Congress that the President doesn’t have the authority to use military force to find and kill the Benghazi attackers.

In fact, the president has inherent constitutional authority to marshal whatever military and law enforcement muscle is necessary to bring the perpetrators to justice, and if they pose a continuing and imminent threat to Americans, to use lethal force.

If and when the Benghazi perpetrators were to pose an imminent threat to the United States, and law enforcement methods weren’t available to deal with the threat, the President would have the authority under domestic and international law to use military force to deal with it. That’s not the case now, and let’s hope this amendment dies a quick death in Congress.

2.  A Good Step-by-Step to Closing Gitmo

Rep. Adam Smith of California has actually proposed a very good amendment to the NDAA. It’s a common sense approach to closing the Guantanamo Bay detention facility by:

• allowing the Department of Defense to transfer Guantanamo detainees to the United States and use funding to construct or modify facilities to house them;
• mandating that all Periodic Review Board Hearings for Guantanamo detainees be completed within 60 days of enactment of the FY 2015 NDAA;
• requiring a detailed plan from the President regarding the administration’s intended disposition of the remaining detainees at Guantanamo; and
• reducing and ultimately eliminating by December 31, 2016 all funding for the detention facilities at Guantanamo.

As U.S. armed forces prepare for the end of major combat operations in the Afghan war—the war that led to Guantanamo’s opening—this is a timely amendment that could help move us toward finally shuttering the notorious detention center in Cuba. At a cost of $2.8 million per detainee annually, it’s perhaps the world’s most expensive prison. Beyond being fiscally irresponsible, Guantanamo remains a constant contradiction of American principles and a stain on its reputation, and thereby undermines the United States’ ability to promote human rights abroad. It also complicates counterterrorism cooperation with allies, who refuse to transfer terrorism suspects to U.S. custody if the result could be detention or trial at Guantanamo. Finally, so long as it’s open it will serve as a recruiting tool for terrorists.

As 37 retired generals and admirals wrote this week: “it is imperative for Congress to remove the remaining restrictions on the transfer of Guantanamo detainees out of Guantanamo this year. Keeping the prison at Guantanamo open undermines American laws and values, and harms—not enhances—our national security.”

Because most detainees at Guantanamo were picked up in the context of the war in Afghanistan, the end of that war raises serious questions about whether the United States will retain legal authority to hold them when the war ends.  If Congress doesn’t develop a plan to close Guantanamo by the end of this year, the courts may force the issue and do it themselves.  This is a good amendment that should be supported.

3. Winding Down the Longest War

With the impending withdrawal of combat troops from Afghanistan at the end of this year, Rep. Adam Schiff of California has proposed a smart amendment that would help wind down the longest war in American history. The Schiff Amendment would repeal the 2001 AUMF, effective one year after enactment.

The 2001 AUMF has been used to justify indefinite detention, drones strikes far from any recognized battlefields, and even warrantless surveillance.  If left in place, it will continue to provide a near-blank check to the Executive Branch to carry out “wartime” activities that Congress never imagined in 2001. Reps. Lee’s and Schiff’s amendments provides an important means for the authorization for military force to expire.

A sunset date for the 2001 AUMF is key to moving the United States away from a permanent war footing. The Executive Branch has more than sufficient authority to deal with terrorist threats without the 2001 AUMF. As Christine Wormuth, Deputy Under Secretary of Defense, told Congress, “The President’s authority as Commander in Chief provides sufficient flexibility to respond to emerging terrorism threats posed by organizations not covered by the 2001 AUMF.” Congress can and should regulate the use of any war authority by mandating official consultations, briefings, and public transparency, and restricting funding or taking other steps to restrict Executive Branch authority in instances of overreach.

It’s been more than twelve years. If the administration believes it needs this AUMF or some other military force authorization going forward, it should explain that and let Congress, as representatives of the American people, debate the question, as the U.S. Constitution intends.

Some have argued we need to keep the AUMF in force until the Guantanamo prison is closed, or risk having to let prisoners there go free. But as Rep. Smith’s amendment demonstrates, and this document lays out in great detail, there’s actually a very reasonable path forward for the disposition of Guantanamo detainees as the authority under the 2001 AUMF expires. The Guantanamo tail shouldn’t wag the AUMF dog.  Perpetuating the 2001 AUMF to some indeterminate point beyond the end of the war in Afghanistan to hold some number of Guantanamo detainees is not only a waste of money and bad policy, but it would violate the laws of war, which require that detainees be prosecuted or transferred at the end of hostilities.

4. An Amendment in Search of a Problem:  the Ban on Transfers to Yemen

Although the Obama administration has not transferred a single Guantanamo detainee to Yemen since 2010, Rep. Jackie Walorski of Indiana has proposed an amendment to the NDAA that would make any future transfers to Yemen impossible, even if the administration determined the transfer was in the interest of U.S. national security.

This official transfer ban is not only unnecessary, but it could seriously harm our counterterrorism policy in Yemen.  Congress has already imposed stringent restrictions on the transfer of detainees out of Guantanamo. Those require the Secretary of Defense to determine that any transfer is in the national security interests of the United States, and that any risks posed are substantially mitigated. Like all other transfers, transferring a Guantanamo detainee to Yemen would require unanimous approval by all of the agencies and departments that are in the best position to know of the risks — including the CIA, DNI, DOD, DOJ, and State Departments.

Adding a categorical Congressional ban on the transfer of detainees to Yemen would harm, rather than help, U.S. national security.  As 37 retired generals and admirals wrote this week: “We acknowledge that the security situation in Yemen and other possible transfer locations is dire.  However, the Department of Defense, and other U.S. security and intelligence agencies, must have the flexibility to make transfer decisions on a case-by-case basis where the risk of transfer can be mitigated and where transfer would be in our broader national interest.”

Yemen’s President Hadi is a committed counterterrorism partner of the United States and one we rely on heavily in our counterterrorism operations in that part of the world. He has agreed to work with the administration to find appropriate ways of repatriating detainees from Guantanamo without their creating a security risk. For Congress to pass a categorical ban on transfers to Yemen would undermine the United States’ relationship with President Hadi and ultimately undermine U.S.-Yemen cooperation on counterterrorism.

5. Finally – A Ban on Indefinite Military Detention of Suspects Arrested in the United States

In the FY 2012 NDAA, Congress codified the authority of the U.S. military under the 2001 AUMF to indefinitely detain terrorism suspects without charge or trial.  This passed even though the Secretary of Defense, Director of National Intelligence, CIA Director, and FBI Director advised against it. The bill required that a substantial subset of foreign terrorism suspects be held in military custody. Rep. Paul Broun of Georgia and Rep. Adam Smith of Washington are now trying to reverse the damage by banning indefinite detention or military custody for anyone apprehended in the United States.

Since 9/11, federal law enforcement authorities have handled nearly 500 international terrorism cases without having to rely on military authorities or detention facilities. The Smith/Broun amendment would reaffirm the spirit of the Posse Comitatus Act, which counsels against deploying the military domestically for law enforcement purposes.

An identical Smith amendment to the FY 2013 NDAA was supported by twenty-seven retired generals and admirals, who said: “[t]hough it is lawful for the military to detain those engaged in hostilities in an armed conflict, the armed forces should not supplant our law enforcement and intelligence agencies at home.”

Despite all the understandable cynicism about Congress these days, there’s actually some good news among the amendments the House is considering right now: members of Congress are thoughtfully wrestling with the problem of how to finally put America’s longest war behind us.