A Bad Day (and New Year) for U.S. National Security

FBI Director Robert Mueller just this morning told the Senate that he fears the proposed law will create confusion over who has authority to investigate terrorism cases.

Defense Secretary Leon Panetta said the National Defense Authorization Act will restrain the Executive Branch's ability to use "all the counterterrorism tools that are now legally available" and "needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States."

Director of National Intelligence James Clapper has written that it "would introduce unnecessary rigidity at a time when our intelligence, military and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks."

Still, ignoring the advice from his most senior federal military and law enforcement professionals, President Obama is expected to sign the 2012 law, according to his senior advisors.

The concerns aren't limited to federal officials. Earlier this week the 20,000-member International Association of Chiefs of Police wrote to Congress expressing concern that the law could "undermine the ability of our law enforcement counterterrorism experts, in particular those involved with Joint Terrorism Task Forces, to conduct effective investigations of suspected terrorists."

A bipartisan group of 26 retired generals and admirals recently wrote that the legislation "both reduces the options available to our Commander-in-Chief to incapacitate terrorists and violates the rule of law" and "would seriously undermine the safety of the American people."

The U.K. and Germany have said they won't share intelligence or turn over suspected terrorists to the U.S. if they know they'll be headed to indefinite military custody.

And that's just the national security concerns.

Americans from across the political spectrum are in an uproar that the law would, for the first time since the McCarthy era, allow the indefinite detention without trial of U.S. citizens and lawful residents in the United States. (The Internal Security Act was repealed before it was ever used.)

It would also make permanent fixtures out of what were intended to be temporary U.S. military prisons abroad. The Guantanamo Bay detention center in Cuba and the Parwan detention facility on the U.S.-run Bagram Air Base in Afghanistan together hold around 3000 detainees in indefinite detention.

The NDAA would not only extend current restrictions on transferring detainees out of Guantanamo, but could extend them to Bagram, making it nearly impossible to transfer future detainees back to where they came from. Defense Department General Counsel Jeh Johnson has called the transfer restrictions "onerous and nearly impossible to satisfy." Other senior officials have warned that they could hamper the US withdrawal of troops from Afghanistan.

Politically, there may be reasons why Congress has supported the NDAA, including the many earmarks that bring costly projects to members' districts. But as a matter of national security and American principles, the bill is a disaster.

"When he took office, President Obama told the American people that he would restore the nation's commitment to the rule of law and the protection of human rights," Elisa Massimino, President and CEO of Human Rights First said today. "Today's announcement proves that he is unwilling to put his full power behind those presidential promises. The American people need a leader whose commitment to smart national security policies will not wane in the face of opposition from Capitol Hill. This legislation will be a loaded gun in the hands of any future administration."