|The Law Fare blog posted the full text of the conference report here (pdf). The detainee and related prosecution provisions are on pages 653 through 677. The American Civil Liberties Union's Washington Legislative Office Director Laura Murphy released the following statement:
The president should more carefully consider the consequences of allowing this bill to become law. If President Obama signs this bill, it will damage both his legacy and American's reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.
Good luck persuading our former constitutional law professor in chief to take the long view here. It doesn't matter that "the Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department's National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive." Obama's not going to risk looking soft on defense right before an election year, even if the conference committee made only minor changes to the bill he threatened to veto:
The bill that emerged from the conference committee on Tuesday dropped a section from the House version that would have banned using civilian courts to prosecute Qaeda suspects. It also dropped a House-written provision enacting a new authorization to use military force against Al Qaeda and its allies.
But the bill includes a narrower provision, drafted by the Senate, authorizing the government to detain, without trial, suspected members of Al Qaeda or its allies - or those who "substantially supported" them - bolstering the authorization it enacted a decade ago against the perpetrators of the Sept. 11 attacks.
Another section would require officials to hold noncitizens suspected of being Qaeda operatives in military custody. The administration had focused its objections on that section, but the panel expanded the executive branch's ability to make exceptions.
It also added language declaring that the new law would not restrict the existing authority of the Federal Bureau of Investigation in terrorism matters. Still, the bureau's director, Robert S. Mueller III, testified on Wednesday that he remained concerned that it would introduce "uncertainty" about what should happen at the time of an arrest.
Another provision would require the attorney general to consult with military and intelligence agencies before charging a terrorism suspect in civilian court.
The House passed its version of the defense authorization bill more than six months ago; Bleeding Heartland discussed here how Iowa's representatives voted on that bill and its significant proposed amendments. The Senate just passed its version of the bill on December 1. The final vote was unusually lopsided, 93 to 7 (roll call), with Iowa's Tom Harkin one of the seven no votes. During the Senate floor debate, Harkin explained,
Mr. President, as a Senator, I have no greater responsibility than to work to ensure the security of the United States, and I believe the military should have all the tools they need to keep our Nation safe. I support the vast majority of the Defense authorization bill. However, because I believe we can protect our national security without infringing on critical constitutional values, I could not support this bill. The bill fails to clarify that under no circumstance can an American citizen be detained indefinitely without trial. And it mandates for the first time that suspects arrested in the United States will be detained by the military rather than domestic and civilian law enforcement, who since 9/11 have successfully convicted in civilian courts over 400 terrorists. Finally, the bill would make it more difficult to close the detention center at Guantanamo Bay, for which I have long fought because the detention facility is a stain on our honor and a recruiting tool for terrorists around the world.
Not only do these provisions violate the core values upon which our freedom rests, but they won't make us safer. The Pentagon, CIA Director Petraeus, Intelligence Director Clapper, and FBI Director Mueller all said these provisions will needlessly hurt, rather than help, our national security.
During the Senate debate, Harkin voted for various Democratic amendments drafted to limit the authority to detain terrorism suspects indefinitely. Grassley voted against the same amendments, all of which failed; see roll calls here, here and here. When tea party Republican Rand Paul offered an amendment to repeal the 2002 authorization for the use of military force in Iraq, Harkin was one of 30 senators to vote yes. Grassley was among the 67 who voted no. That amendment "would have forced the president to return to Congress and seek additional authority to send more troops" to Iraq.
Grassley didn't release any general comment on passage of the defense authorization bill, but he sought to highlight two amendments he helped add to the legislation. One amendment gave the National Guard "a seat at the table" when military decisions are made. The other amendment, co-sponsored with Democrat Barbara Boxer of California, would "limit taxpayer reimbursement for defense contractor salaries."
A large proportion of government contracts actually reimburse the contractor directly for the costs they incur, including for the salaries of their employees. These types of contracts are risky because contractors lose the incentive to control costs. They are only supposed to be used when a fixed price contract is not possible, for instance if the scope or duration of the work is not possible to determine at the outset.
Nevertheless, cost-reimbursement type contracts are used extensively by federal departments and agencies. The Defense Department alone accounted for over $100 billion in cost reimbursement type contracts in fiscal year 2010. President Obama has criticized the widespread use of these types of contracts and has set a goal of slowing the growth and ultimately reducing their use. He's made a little progress. However, we're talking about a small dent in a large bucket. It's clear that cost type contracts are going to account for a major proportion of the dollars spent on federal contracting for the foreseeable future. As a result, we must take steps to limit unreasonable expenditures under these types of contracts.
Senator Boxer and I worked together to try to head off this problem back in 1997. At that time, we proposed capping salary reimbursements at the salary level of the President of the United States. However, a compromise was ultimately enacted that capped how much the top 5 highest earning contractor executives could charge the federal government for their salaries. The cap was set at the median salary of the top 5 executives at companies with annual sales over $50 million, which must be recalculated annually. Since that time, the cap has more than doubled from $340,650 to $693,951. That's 53 percent faster than the rate of inflation.
The House-passed version of the National Defense Authorization Bill expands the current cap to all contractor employees, not merely the top 5 executives, closing a loophole that was being exploited. The version of the National Defense Authorization Bill before the Senate extends the cap only to the top 10-15 executives. However, Senator Boxer and I think it's time to reconsider a fixed cap at the level of the President's salary, which I should add was doubled by Congress to $400,000 since our previous proposal. That's more than generous. Surely the taxpayers shouldn't be asked to pay the salary of a contractor more than the President makes, which is twice what any cabinet secretary makes. Keep in mind that this cap just limits how much Uncle Sam can be billed for, which is on top of whatever the company chooses to pay its employees out of its own pocket.
Kudos to Grassley for chipping away at this problem. How pathetic that it's so hard to get Congress to adopt even limited reform of excessive military contractor billing. We never hear those stories when politicians talk about government "waste, fraud, and abuse." Too bad Grassley isn't troubled by the other excessive spending in our defense budget.
Representative Dave Loebsack (D, IA-02) wanted Iowans to know that he was in a position to help craft the final version of the defense authorization act. From a December 7 press release:
"I was pleased to be named to the conference committee. I look forward to producing a strong bill that will give the support necessary for our National Guard troops, military families and the Rock Island Arsenal," said Loebsack. "I will continue to work with my colleagues on both sides of the aisle to ensure our nation is secure and our troops have the resources and support they need and deserve."
The Rock Island Arsenal is a major employer in the Quad Cities area, which is part of the new second Congressional district. I am disappointed that the ostensibly "progressive" Loebsack is unconcerned about the detainee provisions, but as Bleeding Heartland has discussed before, Loebsack often doesn't vote like a liberal. He has the Progressive Punch score to prove it.
Loebsack and his Republican counterpart Bobby Schilling from the Illinois side of the Quad Cities proudly announced on December 12 that they did well during the conference negotiations. Excerpt from a joint press release:
Washington, DC - Language introduced by Congressmen Dave Loebsack (IA-02) and Bobby Schilling (IL-17) in the House of Representatives-passed version of the Fiscal Year 2012 National Defense Authorization Act (NDAA) to permanently lift the cap in current law on the number of public-private partnerships (PPPs) that arsenals are able to enter into has been included in the comprehensive legislation passed by the Conference Committee. The bill approved by the Committee - referred to as a conference report - reconciles a number of differences between the House and Senate versions of the NDAA, and must now be approved by each chamber before it can become law.
"Supporting good paying jobs at the Rock Island Arsenal is critical to both the economy of the Quad Cities, as well as our nation's defense," said Loebsack. "These public-private partnerships will help ensure continued economic growth for the Quad Cities and protect the Arsenal's future as a strategic asset to the Army, all at no cost to the taxpayer." [...]
Loebsack and Schilling both serve on the House Armed Services Committee (HASC), were named conferees on the Conference Committee and represent the Rock Island Arsenal, the largest government-owned weapons manufacturing arsenal in the United States. In October, Loebsack and Schilling, who sits on the HASC Panel on Business Challenges within the Defense Industry, took part in a hearing at the Arsenal, where they discussed regulatory burdens preventing small- and medium-sized businesses from contracting with the Department of Defense.
Loebsack and Schilling successfully offered language in HASC's markup of the NDAA in May that would lift the cap on the number of public-private partnerships (PPPs) arsenals can enter into. Current law places a cap of eight on that number of PPPs, limiting the Rock Island Arsenal's flexibility to increase its workload. The Loebsack/Schilling language went on to pass the House as part of the comprehensive NDAA in a bipartisan vote of 322-96 The version of the NDAA that passed the Senate on December 1 did not fully lift the cap, instead raising it to 15. While serving on the Conference Committee, Schilling and Loebsack urged fellow conferees to join them in maintaining the House-passed PPP language to maximize the possibility for private-sector job growth at installations like the Rock Island Arsenal. Loebsack and Schilling also successfully included language in the conference report that would designate the Arsenal as a Center for Industrial and Technical Excellence, further improving its ability to enter into PPPs, provide for our men and women in combat, strengthen the Arsenal's core skills and manufacturing abilities.
"I am pleased that members of the House and Senate, on both sides of the aisle, worked together to produce a bill that will strengthen our economy and help create jobs," said Loebsack. "By permanently lifting the cap, the Rock Island Arsenal's highly skilled workforce can produce the equipment necessary for our troops to safely carry out their missions."
Like they say, all politics is local. Just don't expect Loebsack to stand up for his Johnson County constituents' desire to redirect some defense funding to other domestic priorities.
I will give Loebsack credit for advocating some good mental health provisions in the defense authorization bill. According to a different December 12 press release from his office, the conference committee approved language to allow the "National Guard and Reserve to place mental health counselors at readiness centers during training and family readiness events to increase access and improve mental health care services." The bill also "[p]rovides for a study to ensure members of the National Guard receive the appropriate Basic Allowance for Housing (BAH) or Overseas Housing Allowance (OHA) when transitioning between Active Duty and Full Time National Guard duty without a break in service."
On December 14, the U.S. House approved the conference report for the National Defense Authorization Act of 2012 by an unusual bipartisan vote of 283 to 136 (roll call). About a quarter of House Republicans voted against the bill, while the Democratic caucus was split right down the middle: 93 yes and 93 no votes. Iowa Republicans Tom Latham (IA-04) and Steve King (IA-05) voted for the bill, along with the majority of their caucus. I didn't see public statements from either representative explaining that vote.
Democrats Loebsack and Leonard Boswell (IA-03) also voted for the bill, as they did when the House first approved the defense authorization in May. Boswell didn't send out a press release about the conference report, but Loebsack did:
Washington, D.C. - Congressman Dave Loebsack today released the following statement after the House passed the National Defense Authorization Act (NDAA). Loebsack, who serves on the House Armed Services Committee, was a member of the conference committee that negotiated the final version of the bill. He was able to include many of his top priorities, including support for the Rock Island Arsenal and expanded mental health care and suicide prevention access for the National Guard and Reserve. In addition, the bill gives the Chief of the National Guard Bureau a seat on the Joint Chiefs of Staff; provides funding for National Guard equipment; gives our troops a 1.6 percent pay raise; and significantly improves military sexual assault and harassment prevention and response policies. The bill now heads to the Senate before going to the President for his signature.
"Our men and women in uniform serve our nation with tremendous skill and honor. I was proud to work in a bipartisan fashion to give our troops and military families the support and resources they deserve," said Loebsack. "I'm happy this bill includes my legislation to expand the National Guard's and Reserve's access to mental health care and suicide prevention. By providing this access during training, this provision will help to support our National Guard and Reserve, who have been hit hard in this economic downturn, while they're here at home, not just when they're serving our country overseas."
"The Rock Island Arsenal is critical to the Quad Cities' economy and to our military readiness. The highly skilled Arsenal workforce is second to none, and I am very proud that this bill includes the provisions I worked with Congressman Schilling on to expand the Arsenal's ability to enter into public private partnerships. These partnerships will strengthen the Rock Island Arsenal, contribute to the Quad Cities' economy, and support the good jobs at the Arsenal," said Loebsack.
I expect Loebsack to highlight these accomplishments in television and radio commercials during next year's IA-02 campaign.
Democrat Bruce Braley (IA-01) voted against the defense authorization bill on December 14. That didn't surprise me, since he was the only Iowan to vote against the original House version of that legislation. I did find Braley's press release to be a bit sneaky, though:
House Passes Defense Bill with Braley Provisions Strengthening Protections for Sexual Assault Victims in Military
Push for improved sexual assault protections attracted bipartisan support
Washington, DC - Several provisions introduced by Rep. Bruce Braley (IA-01) to strengthen protections for victims of sexual assault who serve in the military were included in the FY 2012 National Defense Authorization Act that passed the US House last night.
"The current system for preventing sexual assault in the military doesn't work," Braley said. "Stronger protections for victims of sexual assault in the military are badly needed. Today's vote is the culmination of months of hard work by a bipartisan group of citizens and legislators committed to improving protections for women who serve in the military."
In March, Braley introduced the Support for Survivors Act, requiring the Defense Department to ensure the secure storage of all documents connected with reports of sexual assaults and sexual harassment across the military branches. The bill would also prevent the military from destroying any records relating to sexual assault.
In April, Braley introduced the Holly Lynn James Act to strengthen the legal process for addressing claims of domestic violence and sexual assault in the military and to improve policies to prevent sexual assault. The bill is named after Holly Lynn James, a constituent of Braley's, was murdered by her husband when both served in the military. James had filed complaints against her husband, and he was supposed to be restricted to his barracks the night he killed her.
Braley's legislation attracted bipartisan supporters in the House and Senate. Reps. Ted Poe (R-TX), Chellie Pingree (D-ME), Louise Slaughter (D-NY) co-sponsored the Holly Lynn James Act and the Support for Survivors Act in the House; in the Senate, Senators Amy Klobuchar (D-MN), Susan Collins (R-ME), Lisa Murkowski (R-AK), and Claire McCaskill (D-ME) were co-sponsors of the Support for Survivors Act.
After months of negotiations, several provisions from the Support for Survivors and Holly Lynn James acts were included in the Defense Authorization Act.
Specific new protections included in the Defense Authorization Act include:
· Access to Counsel. Provides military victims of sexual assault advocates and the ability to confidentially consult with military legal counsel within 72 hours of a crime being committed.
· Improved Training for Service Members. Improves training for service members to prevent sexual assault. Requires larger numbers of sexual assault prevention coordinators to provide guidance to military units.
· Elevates the Importance of Sexual Assault Prevention. Language elevates the director of the Sexual Assault Prevention Office to the flag officer level.
· Improved Preservation of Evidence. Requires Defense Department to work with the Veterans Administration to preserve documentary evidence of sexual assault for victims' purposes.
This press release glosses over one fact: Braley voted against the bill. Clearly he wants Iowa media to report that he helped protect women in the military without mentioning that he voted against the bill containing the valuable provisions. I don't have a problem with lawmakers trying to make a bad bill better, even if they end up voting against final passage. But Bleeding Heartland called out Steve King when he bragged about his "important pro-life amendment" to an agriculture appropriations bill he opposed on final passage. I hold Braley to the same standard.
I asked Braley's office why he opposed the defense authorization bill and received the following reply:
Rep. Braley opposed the bill because it (1) included the first increase in Tricare (healthcare) fees for military personnel, veterans, and their families since the mid-1990's, and (2) included wasteful spending with few cost constraints on several unnecessary Pentagon programs that have already overrun cost projections by billions of dollars.
Sounds on target to me. I wish Braley felt confident enough to make those points in a press release.
After House approval, the conference report went to the Senate, which passed the bill by an 86 to 13 vote yesterday. Chuck Grassley was a yes vote, while Tom Harkin was one of the seven Democrats and six Republicans who rejected the bill.
Any comments about U.S. military policy or defense spending are welcome in this thread.
JANUARY 2012 UPDATE: President Obama signed this bill into law on December 31 and released this signing statement:
For Immediate Release
December 31, 2011
Statement by the President on H.R. 1540
Today I have signed into law H.R. 1540, the "National Defense Authorization Act for Fiscal Year 2012." I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.
The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa'ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.
Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.
Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not "limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." Second, under section 1021(e), the bill may not be construed to affect any "existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.
Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are "captured in the course of hostilities authorized by the Authorization for Use of Military Force." This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.
I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.
My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.
Sections 1023-1025 needlessly interfere with the executive branch's processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.
Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.
Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch's authority to transfer detainees to a foreign country. This hinders the executive's ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.
Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.
Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President's constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.
My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.