Indefinite Detention: 3 Conservative Voices of Reason

December 6, 2011

The House and Senate are locked in conference this week to thrash out the National Defense Authorization Act (NDAA) 2012. It’s a curious sign of the times that there are many conservative voices crying foul over the bill as well as progressive ones. Three in particular are worth noting.

Senator Rand Paul, cast one of the bravest votes last week against a bipartisan group that voted for the NDAA, one of the worst bills to cross the floor this year. It threatens to detain suspects indefinitely, undercuts the rights of US citizens, and sideline our best tools in countering terrorism in one fell swoop.

I don’t doubt the sincerity or passion of those on the opposing side, only their wisdom and their open ended faith in government. Those who place their blind faith and trust in government, and trust that authority will keep itself in check, are liable to find their liberties are eroded as surely as termites eat away an old wooden house.

Ten years after 9-11, with Osama Bin Laden safely ensconced at the bottom of the Indian Ocean, is it really time to give unlimited power to Washington to imprison American citizens? The threat still exists and is constantly morphing, but that is a reason for more debate and caution not less.  Senator Paul said it best when he stated:

“If you allow the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whims of those in power. That is a dangerous game.”

In the face of a welter of editorials and voices opposed to the detention provisions of the NDAA, Senate views remain locked, fixed and set in the wrong direction. The unfortunate truth is that there are many dedicated public servants who tried to address the detention issues in the two terms of the Bush administration and were ultimately unsuccessful, because this is not just a legal issue but a political question, and the politics of the issue are outrunning the facts on the ground. So it was with much interest that I read this piece by John Bellinger and Matt Waxman which highlights their concern over the NDAA.  They say, more succinctly than I could:

“[The provisions outlined in the NDAA] could have a detrimental impact on U.S. counterterrorism operations. Indeed, while originally drafted by Senate Republicans, these legislative encroachments on the president’s authorities would likely have been as strongly opposed by the Bush administration as by the Obama administration. Any president–Democrat or Republican–would object to legislation that interferes this way with his flexibility in conducting the war against al-Qaeda.”

Many human rights groups, law enforcement and experts warned Congress that the most effective tools in addressing terrorism often lie in the least likely places. Unlike the fake antiheros of the hit TV show 24 the real front line in addressing terrorism lies with police, FBI and local law enforcement. Federal prosecutors have more experience in dealing with these issues than the bulk of those in the military system, because they have handled many many more complex cases dealing with terror conspiracies.

In the two exceptions–both early in its first term–where the Bush administration relied on military authorities and custody to detain al-Qaeda agents captured domestically (Jose Padilla and Ali Saleh al-Marri), it ultimately reverted to civilian detention and criminal prosecution because the legal risks of doing otherwise were too high. In those and other cases, counterterrorism officials across the government recognized that civilian criminal prosecution was more reliable and effective than military custody to handle terror suspects inside the United States.

Lastly the international community is often spurned by politicians who brag of never carrying a passport or going further than the confines of DC. But the reality is that we live in a complex interdependent world, that the US neither has the desire nor the will nor the wherewithall to police single handed. It is in the US vital national interest to have international cooperation in tackling terrorism; to hunt, chase – kill or apprehend terrorists and terror suspects. The NDAA does everything in its power to make that cooperation less likely.

Mandating military detention for categories of suspected terrorists could also jeopardize the ability of the United States to seek extradition of al-Qaeda suspects from other countries and hamper vital intelligence-sharing and law-enforcement cooperation by U.S. allies, who would be concerned that information they shared might be used to place individuals into military detention.

It’s asking too much for the House to add common sense and reason where the Senate so clearly failed. The House is not a deliberating moderating body. The last thing this debate needs is more vitriol and passion, and less judgement. The issue is simply too important to be cast to the winds, and the last best hope is for a White House veto – just like 4 other previous Presidents who vetoed the NDAA including Presidents Reagan and George W Bush.