The 2014 NDAA makes no efforts to modify the 2012 NDAA’s consent to indefinite detention.
The current Congress, the 113th, is on track to be the least productive in the history of the Union. A divided government and extreme partisanship, which on repeated occasions reached and exceeded brinksmanship levels, that will, at its current pace, produce less than half of the passed legislation of the current record for most unproductive session of Congress: this session’s predecessor, the 112th Congress.
With only 56 laws passed this year, the notion of the Republican-controlled House and the Democratic-controlled Senate agreeing on anything or — even worse — compromising seems to be a lofty idea. However, the House’s recent passage of the bipartisan Ryan-Murray budget by a margin of 332-94 suggests a move by the mainstream Republican leadership to regain control of the party and the House from the extreme right. With the House passing the fiscal year 2014 National Defense Authorization Act — which won the approval of both the House and Senate Armed Services Committee — there is a hope that, in the upcoming year, the 113th Congress will make up for its slow start.
But as the Senate prepares to take up the legislative package — the Senate is currently busy with around-the-clock debates over executive nominations — questions about the amendments that did not make the cut and the extent the bipartisan compromising entailed are being batted around as the nation considers this “mixed bag.”
The NDAA — the primary funding authorization for the nation’s military — regularly carry funding conditions which, in effect, mandate or cancel military programs, procurement and/or activities. The 2014 NDAA will authorize $552 billion in national defense spending — in line with Department of Defense’s requested funding levels, but well passed the sequestration limits — with an additional $81 billion going to overseas contingency operations.
The bill, created by private negotiations with the chambers’ committee leaders, failed to receive the debate and due process such a bill would have received in order to get the bill passed before the end of the year. There has not been a year without an NDAA since 1952.
“I wish we had time for a more full debate on this. But we’re here at this point saying we are where we are and we ran out of time,” said Rep. Buck McKeon, chairman of the House Armed Services Committee. “We owe the men and women in uniform and our national security to finish up this bill.”
“This is the only way we could pass a bill this year. It’s not the first time something like this has happened,” said Sen. Carl Levin, chairman of the Senate Armed Services Committee.
Settling the Guantanamo question
As such, a number of controversial or compromised issues emerged in the final text. Under this deal, for example, the military and the administration would be blocked from modifying or creating any military facility in the United States to house the Guantanamo detainees. With the administration renewing its commitment to close the infamous military prison, the question of where the majority of the prison population — whom the administration feels are too dangerous to transfer to another country — will go has became a political hot potato.
New funding for additional facilities or for existing facility repairs has been stripped from the NDAA. While the 2014 NDAA makes no efforts to modify the 2012 NDAA’s consent to indefinite detention — which allows the administration to detain any terror suspect it wishes indefinitely if the the person can be found to present a threat to the safety and security of the nation — the bill’s language, which loosens restrictions on sending the detainees to Yemen based on the assessment of the country to detain, rehabilitate or prosecute them, is forcing the Obama White House to seriously move toward the closure of Guantanamo.
“It’s a very good development that the Defense Department can step up its efforts to resettle and repatriate the vast majority of detainees who have never been charged with a crime,” said Chris Anders of the American Civil Liberties Union to The Huffington Post. “It’s certainly a big step in the right direction, but certainly more needs to be done.”
“The proposed defense bill is the first step toward untangling the knot that is Guantanamo,” said Dixon Osburn of Human Rights First in a statement. “It provides a path forward for foreign transfers that balances our security interests and our legal obligations.”
The continued existence of “indefinite detention” — which, in his signing statement for the 2012 NDAA, President Obama argued he only accepted in order to get the NDAA passed, but consent to the appeal and eventual overturning of the May 2012 preliminary injunction ruling against the implementation of the provision — remains a thorn in the sides of many. Anti-NDAA laws have been introduced by 27 cities, 17 counties and 25 states that would prohibit the arrest of anyone “under the law of war” within their borders.
Codifying a scandal
Another issue of contention is Section 1071(a), which establishes the “Conflict Records Research Center.” According to the bill, the purpose of this center is to “To establish a digital research database, including translations, and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States, with rigid adherence to academic freedom and integrity; [and] Consistent with the protection of national security information, personally identifiable information, and intelligence sources and methods, to make a significant portion of these records available to researchers as quickly and responsibly as possible while taking into account the integrity of the academic process and risks to innocents or third parties.”
In addition, the “Conflict Records Research Center” would “conduct and disseminate research and analysis to increase the understanding of factors related to international relations, counterterrorism, and conventional and unconventional warfare and, ultimately, enhance national security,” and collaborate with the academic and national security communities on exploring issues of importance to the U.S. government.
Many civil liberties see this provision as a call to codify and legitimize the National Security Agency’s electronic surveillance. Considering that the provision calls on the secretary of defense to concur with the director of national intelligence on the activities of the CRRC, and that the NDAA defines a “captured record” as “a document, audio file, video file, or other material captured during combat operations from countries, organizations, or individuals, now or once hostile to the United States,” this provision can be read as valid justification for continued surveillance.
As based on the Patriot Act and the Authorization for the Use of Military Force, those that are thought to promote or engage in terror at home or abroad are seen as combatants against the U.S., this rule potentially creates a precedence in which the NSA collects surveillance with the expressed purpose to be gift to the CRRC, where it can be analyzed, studied, shared within the intelligence community and stored indefinitely.
“[There] is in the NDAA for 2014 a frightening fusion of the federal government’s constant surveillance of innocent Americans and the assistance it will give to justifying the indefinite detention of anyone labeled an enemy of the regime,” wrote Joe Wolverton for the New American on the issue. “When read in conjunction with the provision of the AUMF that left the War on Terror open-ended and the prior NDAAs’ classification of the United States as a battleground in that unconstitutional war, and you’ve got a powerful combination that can knock out the entire Bill of Rights.”
Protecting the dignity in service
The NDAA made other significant changes, including an one percent increase in military personnel pay and protection of Northrop Grumman’s RQ-4 Global Hawk Unmanned Aerial Vehicle program from attempts by the Air Force to shut it down in favor of a return to the U-2 platform. More important than this, however, is what was left out of the NDAA. Military hawks who wish to protect the military’s lines of command denied Sen. Kirsten Gillibrand’s sexual assault amendment a place in the compromised bill.
Gillibrand’s amendment, which would separate the response, investigation and prosecution of several crimes — including sexual abuse and rape — from the military hierarchy, in which the fear of repercussion have kept many victims from coming forward, was blocked by Senate Republicans last month when it came up for vote. Despite this, Gillibrand is confident that her bill will pass eventually.
“We are confident that we will get a vote. Regardless of what happens, the senator will not go away. She will keep fighting to protect our brave men and women in uniform and to strengthen our military,” said Bethany Lesser, a spokeswoman for Gillibrand, to ABC News.
Despite this, the NDAA strips military commanders of their rights to overturn jury convictions — which allowed convicted sexual offenders to return to service — offers independent counsel to each victim that reports a sexual assault and requires any active military personnel convicted of a sexual assault to be dishonorably discharged or dismissed with prejudice. It also criminalizes retaliation against sexual assault reportees, creates a civilian review of not-prosecuted cases and eliminates the statute of limitation on these cases.
These changes were prompted on by revelations that a female U.S. Naval Academy midshipman — who was allegedly raped by two of her classmates — was subjected to more than 30 hours of aggressive questioning during an Article 32 preliminary hearing –which is the equivalent of a grand jury — which asked, among other things, how wide she opened her mouth during oral sex and if she wore underwear. Other changes to the NDAA would limit such hearings in the future to “determining whether there is probable cause to believe an offense has been committed and the accused committed the offense.”
“The exact same thing this midshipman went through, scores have been going through that same type of abusive process. Shining a spotlight on it brought home what we were saying about all these problems,” said Susan Burke, attorney for the midshipman. The NDAA would also make testimony from the alleged victim in preliminary hearings voluntary.
With 78 out 87 Senate amendments approved, it is uncertain if the Senate Republicans will support this compromised bill, with some pushing for the bill to be passed in January — when there will be adequate time for debate.
Some Republicans are holding out for a vote for stricter sanctions against Iran, while others recognize the desperation of Senate Majority Leader Harry Reid’s attempts to avoid being the first majority leader in 60 years not to get an NDAA passed. Despite this, Sen. Jim Inhofe has told Politico that at least half of the Senate Republicans will vote for the NDAA — enough for passage. There has been no indications that President Obama will veto the bill.