Paul Pillar

The National Defense Authorization Gesture

The defense-authorization bill that the House of Representatives passed on Wednesday (and the Senate is expected to vote on this week as well) has been extensively and justly criticized and is a good example of the abusive manipulation of this type of legislation. A defense-authorization act is supposed to set the limits for appropriations for national defense and update the rules and standards by which the Department of Defense is to operate. This bill has become a Christmas tree of topics on which members of Congress want to make gestures. There is, for example, gay marriage. House Armed Services Committee Chairman Buck McKeon (R-CA) says it would have been a show-stopper for him if the bill didn't include a ban on military chaplains performing such marriages. Then of course there is Iran, with sanctions aimed at Iran's central bank that the White House has warned might only benefit Tehran by driving up oil prices. But as with most other similar measures on Iran, what seems to matter to members of Congress is not what the practical result would be but instead that they have another opportunity to express toughness on Iran.

The biggest area of discussion and controversy was the portion of the bill that expands Congressional micromanagement of the handling of terrorist suspects by mandating military custody of some of them. Some of the many problems with this are summarized in a Washington Post editorial, which suggests that a veto might be in order. It appears that bargaining between the White House and Congressional leaders while the bill was in conference committee earlier this week has resulted in enough modifications to avert a veto. But the modifications have only confused lines of responsibility further, with the bill saying the military should be involved in custody of suspects but that the role of civilian law-enforcement agencies is not diminished. Pity the poor officers, civilian and military alike, who will have to figure out what complying with this law means in practice while they are having to deal with potentially dangerous people.

A basic question is why any of this was necessary in the first place. What purpose is served by legally mandating anything about military custody? It appears to be a solution in search of a problem. Actually, it is just another gesture—another opportunity to look tough on terrorism by showing that we consider it to be war. None of that sissy civilian-criminal justice stuff for our representatives in Congress.

This year's defense-authorization bill isn't the first one to go in some of these unhelpful directions. Some of the prisoners at Guantanamo who had been cleared for release are still sitting there because of a provision in last year's defense-authorization act requiring the secretary of defense to “ensure” that any prisoner released “cannot engage or re-engage in any terrorist activity.” As the Defense Department's general counsel has noted, that provision is “near impossible to satisfy.” If Congress is applying this approach to terrorism, why not to other types of crime as well? Perhaps the attorney general or someone else should be required to “ensure” that no released prisoner ever commit another crime. Think about it—there would be no more recidivism, and career criminals would be a thing of the past.

Amid all the problems of confused responsibilities and getting in the way of the FBI doing its job, there is one other problem with the terrorism-suspect provisions of the current bill that has not received attention. It is only terrorists suspected of being affiliated with al-Qaeda to which the law's provisions would apply. An al-Qaeda/non-al-Qaeda distinction has become a highly defective way of classifying terrorists, let alone being the basis for a legal distinction. The name al-Qaeda has come to be used in such a loose and variable way that it can mean anything from a small group commanded by Ayman al-Zahahiri to any violent Sunni extremist with an anti-U.S. bent. There are many degrees of affinity to the name, ideology and cause of al-Qaeda, and many of those expressing or feeling some degree of affinity are in no way subject to the direction or discipline of a group with that name. Even if the legal confusion could be overcome, there is no substantive justification for mandating one form of custody for terrorists with just enough affinity to be given the al-Qaeda label and not for others who may be just as dangerous and hostile toward the United States but do not have that label.

This bill, even if it does not get vetoed, is a mess.