EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
November 17, 2011
STATEMENT OF ADMINISTRATION POLICY
S. 1867 – National Defense Authorization Act for FY 2012
(Sen. Levin, D-MI)
The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012. The Administration appreciates the Senate Armed Services Committee‘s continued support of our national defense, including its support for both the base budget and for overseas contingency operations and for most of the Administration’s initiatives to control spiraling health costs of the Department of Defense (DoD).
The Administration appreciates the support of the Committee for authorities that assist the ability of the warfighter to operate in unconventional and irregular warfare, authorities that are important to field commanders, such as the Commanders’ Emergency Response Program, Global Train and Equip Authority, and other programs that provide commanders with the resources and flexibility to counter unconventional threats or support contingency or stability operations. The Administration looks forward to reviewing a classified annex and working with the Congress to address any concerns on classified programs as the legislative process moves forward.
While there are many areas of agreement with the Committee, the Administration would have serious concerns with provisions that would: (1) constrain the ability of the Armed Forces to carry out their missions; (2) impede the Secretary of Defense’s ability to make and implement decisions that eliminate unnecessary overhead or programs to ensure scarce resources are directed to the highest priorities for the warfighter; or (3) depart from the decisions reflected in the President’s FY 2012 Budget Request. The Administration looks forward to working with the Congress to address these and other concerns, a number of which are outlined in more detail below.
Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch’s ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government‘s ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices.
Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of
legal questions that will distract from our efforts to protect the country. While the current
language minimizes many of those risks, future legislative action must ensure that the
codification in statute of express military detention authority does not carry unintended
consequences that could compromise our ability to protect the American people.
The Administration strongly objects to the military custody provision of section 1032, which
would appear to mandate military custody for a certain class of terrorism suspects. This
unnecessary, untested, and legally controversial restriction of the President’s authority to defend
the Nation from terrorist threats would tie the hands of our intelligence and law enforcement
professionals. Moreover, applying this military custody requirement to individuals inside the
United States, as some Members of Congress have suggested is their intention, would raise
serious and unsettled legal questions and would be inconsistent with the fundamental American
principle that our military does not patrol our streets. We have spent ten years since September
11, 2001, breaking down the walls between intelligence, military, and law enforcement
professionals; Congress should not now rebuild those walls and unnecessarily make the job of
preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility
of our national security professionals to choose, based on the evidence and the facts and
circumstances of each case, which tool for incapacitating dangerous terrorists best serves our
national security interests. The waiver provision fails to address these concerns, particularly in
time-sensitive operations in which law enforcement personnel have traditionally played the
leading role. These problems are all the more acute because the section defines the category of
individuals who would be subject to mandatory military custody by substituting new and
untested legislative criteria for the criteria the Executive and Judicial branches are currently
using for detention under the AUMF in both habeas litigation and military operations. Such
confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate
terrorism suspects, and could disrupt the collection of vital intelligence about threats to the
Rather than fix the fundamental defects of section 1032 or remove it entirely, as the
Administration and the chairs of several congressional committees with jurisdiction over these
matters have advocated, the revised text merely directs the President to develop procedures to
ensure the myriad problems that would result from such a requirement do not come to fruition.
Requiring the President to devise such procedures concedes the substantial risks created by
mandating military custody, without providing an adequate solution. As a result, it is likely that
implementing such procedures would inject significant confusion into counterterrorism
The certification and waiver, required by section 1033 before a detainee may be transferred from
Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to
exercise its military, national security, and foreign relations activities. While these provisions
may be intended to be somewhat less restrictive than the analogous provisions in current law,
they continue to pose unnecessary obstacles, effectively blocking transfers that would advance
our national security interests, and would, in 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.
Section 1034’s ban on the use of funds to construct or modify a detention facility in the United
States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs
dictate. Section 1035 conflicts with the consensus-based interagency approach to detainee
reviews required under Executive Order No. 13567, which establishes procedures to ensure that
periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies. Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense. In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.
Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa’ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.
Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.
Joint Strike Fighter Aircraft (JSF): The Administration also appreciates the Committee’s inclusion in the bill of a prohibition on using funds authorized by S. 1867 to be used for the development of the F136 JSF alternate engine. As the Administration has stated, continued development of the F136 engine is an unnecessary diversion of scarce resources.
Medium Extended Air Defense Systems (MEADS): The Administration appreciates the Committee’s support for the Department’s air and missile defense programs; however, it strongly objects to the lack of authorization of appropriations for continued development of the MEADS program. This lack of authorization could trigger unilateral withdrawal by the United States from the MEADS Memorandum of Understanding (MOU) with Germany and Italy, which could further lead to a DoD obligation to pay all contract costs – a scenario that would likely exceed the cost of satisfying DoD’s commitment under the MOU. Further, this lack of authorization could also call into question DoD’s ability to honor its financial commitments in other binding cooperative MOUs and have adverse consequences for other international cooperative programs.
Overseas Construction Funding for Guam and Bahrain: The Administration has serious concerns with the limitation on execution of the United States and Government of Japan funds to implement the realignment of United States Marine Forces from Okinawa to Guam. The bill would unnecessarily restrict the ability and flexibility of the President to execute our foreign and defense policies with our ally, Japan. The Administration also has concerns over the lack of authorization of appropriations for military construction projects in Guam and Bahrain. Deferring or eliminating these projects could send the unintended message that the United States does not stand by its allies or its agreements.
Provisions Authorizing Activities with Partner Nations: The Administration appreciates the support of the Committee to improve capabilities of other nations to support counterterrorism efforts and other U.S. interests, and urges the inclusion of DoD’s requested proposals, which balance U.S. national security and broader foreign policy interests. The Administration would prefer only an annual extension of the support to foreign nation counter-drug activities authority in line with its request. While the inclusion of section 1207 (Global Security Contingency Fund)
is welcome, several provisions may affect Executive branch agility in the implementation of this authority. Section 1204 (relating to Yemen) would require a 60-day notify and wait period not only for Yemen, but for all other countries as well, which would impose an excessive delay and seriously impede the Executive branch’s ability to respond to emerging requirements.
Unrequested Authorization Increases: Although not the only examples in S. 1867, the Administration notes and objects to the addition of $240 million and $200 million, respectively, in unrequested authorization for unneeded upgrades to M-1 Abrams tanks and Rapid Innovation Program research and development in this fiscally constrained environment. The Administration believes the amounts appropriated in FY 2011 and requested in FY 2012 fully fund DoD’s requirements in these areas.
Advance Appropriations for Acquisition: The Administration objects to section 131, which would provide only incremental funding – undermining stability and cost discipline – rather than the advance appropriations that the Administration requested for the procurement of Advanced Extremely High Frequency satellites and certain classified programs.
Authority to Extend Deadline for Completion of a Limited Number of Base Closure and Realignment (BRAC) Recommendations: The Administration requests inclusion of its proposed authority for the Secretary or Deputy Secretary of Defense to extend the 2005 BRAC implementation deadline for up to ten (10) recommendations for a period of no more than one year in order to ensure no disruption to the full and complete implementation of each of these recommendations, as well as continuity of operations. Section 2904 of the Defense Base Closure and Realignment Act imposes on DoD a legal obligation to close and realign all installations so recommended by the BRAC Commission to the President and to complete all such closures and realignments no later than September 15, 2011. DoD has a handful of recommendations with schedules that complete implementation close to the statutory deadline.
TRICARE Providers: The Administration is currently undertaking a review with relevant agencies, including the Departments of Defense, Labor, and Justice, to clarify the responsibility of health care providers under civil and workers’ rights laws. The Administration therefore objects to section 702, which categorically excludes TRICARE network providers from being considered subcontractors for purposes of the Federal Acquisition Regulation or any other law.
Troops to Teachers Program: The Administration urges the Senate’s support for the transfer of the Troops to Teachers Program to DoD in FY 2012, as reflected in the President’s Budget and DoD’s legislative proposal to amend the Elementary and Secondary Education Act of 1965 and Title 10 of the U.S. Code in lieu of section 1048. The move to Defense will help ensure that this important program supporting members of the military as teachers is retained and provide better oversight of 6 program outcomes by simplifying and streamlining program management. The Administration looks forward to keeping the Congress abreast of this transfer, to ensure it runs smoothly and has no adverse impact on program enrollees.
Constitutional concerns: A number of the bill’s provisions raise additional constitutional concerns, such as sections 233 and 1241, which could intrude on the President’s constitutional authority to maintain the confidentiality of sensitive diplomatic communications. The Administration looks forward to working with the Congress to address these and other concerns.
At the start of the first hearing on a lawsuit challenging the Homeland Battlefield Act, a federal judge appeared to be “extremely skeptical” that those pursuing the challenge had grounds to sue the US government. However, by the end of the hearing, the judge acknowledged plaintiffs had made some strong arguments on why there was reason to be concerned about the Act, which passed as part of the National Defense Authorization Act (NDAA) on New Year’s Eve last year.
Adam Klasfeld of Courthouse News, one of the few media organizations that actually covered the hearing yesterday, reported that Judge Katherine B. Forrest cited the lack of definition of terms such as “substantial support” or “associated forces,” which appear in the law. Without clearly knowing what “substantial support” for terrorism or “associated forces” of terrorist groups could be, Forrest asked, “How does the common citizen know?”
The government lawyers contended that the Homeland Battlefield Law “affirms” the Authorization to Use Military Force passed under President George W. Bush. But, according to Klasfeld, Forrest asked why language had changed. “Congress writes legislation for a reason, right?” There must be a purpose for the change.
There are seven plaintiffs trying to sue right now. Dubbed the “Freedom Seven” by their attorneys, the plaintiffs include: Chris Hedges, a journalist; Daniel Ellsberg, who is known for releasing the Pentagon Papers; Noam Chomsky, a well-known writer; Icelandic MP Birgitta Jonsdottir; Tangerine Bolen, founder of RevolutionTruth.org; Kai Wargalla, deputy director of Revolution Truth and founder of Occupy London; and Alexa O’Brien, journalist and founder of US Day of Rage.
Paul Harris of The Guardian also covered the hearing. His report indicates that the government did not block Icelandic MP Birgitta Jonsdottir’s testimony from being entered into the record.
Jonsdottir, whose past association with WikiLeaks led the Justice Department to subpoena her Twitter account, had been warned that the State Department might prevent her testimony from being read in court, but author Naomi Wolf was permitted to read Jonsdottir’s statement.
Noting that many US political leaders have labeled WikiLeaks a “terrorist” organization, the statement read by Wolf explained why Jonsdottir had refused to come give lectures in the United States for fear of being detained.
[The NDAA] provisions create a greater sense of fear since now the federal government will have a tool with which to incarcerate me outside of the normal requirements of the criminal law. Because of this change in the legal situation, I am now no longer able to travel to the US for fear of being taken into custody as as having ‘substantially supported’ groups that are considered as either terrorist groups or their associates.
Bolen and Ellsberg did not testify on Thursday, but Hedges, O’Brien and Wargalla each appeared in person to testify. Harris reported that Hedges said he ”feared he might be subject to arrest under the terms of NDAA if interviewing or meeting Islamic radicals could constitute giving them ‘substantial support’ under the terms of the law.” O’Brien described in detail how a private intelligence firm was trying to link US Day of Rage to “Islamic fundamentalists.” And, Wargalla testified on how the City of London had listed Occupy London alongside al Qaeda and extremist groups from Belarus and Colombia.
Lawyer Benjamin Torrance, who was in court to represent the government, declined to answer if any of the plaintiffs concerned about the law could be targeted. He said he could not “make specific representations regarding specific plaintiffs.” He could not say if Icelandic MP Birgitta Jonsdottir “would have been detained had she flown in from Iceland.” All he could say was that “an association with WikiLeaks alone would not make her subject to the NDAA.”
The reluctance to answer specifically, though routine, led Forrest to state that the government was not helping its case that citizens do not have any reason to fear the law. The judge said, “If people weren’t worried before those series of questions, they could worry about it now,” she said. And, with regards to Hedges, who filed the lawsuit against the government, she added, “It sounded like Mr. Hedges was all over co-belligerents.”
The hearing that played out in court yesterday was held to determine if any of the plaintiffs had grounds to sue. Klasfeld noted, “To win the right to sue, only one of the seven plaintiffs needs to establish a ‘reasonable fear’ of being detained for free speech. The plaintiffs that remain standing can then challenge the law on constitutional grounds.”
Back in December, Congress passed the law but there wasn’t unanimous support. There was a level of consternation over what the Obama Administration was asking members of Congress to do. Much of that dismay came from a broad political spectrum of Americans that found the law to be an assault on civil liberties. Amendments were proposed but failed to pass.
The aftermath has not seen outrage among citizens relent. President Barack Obama may have issued a signing statement to the law, but it did little to change the fact that indefinite detention was codified into law. It did nothing to prevent future administrations from wielding the power of the Homeland Battlefield Act. And, as a result, members of Congress and state officials bolstered by anger at the grassroots level are mobilizing to ensure provisions of the NDAA are stripped or neutralized.
The plaintiffs are realistic about the chance they have to actually advance this lawsuit, but they also are convinced they have to push back against unchecked executive power in the United States. They see this as a beginning and intend to add many more plaintiffs to lawsuit in the coming weeks.
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