The debate over the Smith-Amash amendment to the NDAA continues. Yesterday, we posted a letter written by former administration attorneys general criticizing that amendment, among others. Today, it’s twenty-seven retired admirals and generals writing in support of the Smith-Amash Amendment to the 2013 NDAA in a letter organized by Human Rights First.

The letter says:

Dear Representative:

We are members of a nonpartisan group of forty retired generals and admirals concerned about U.S. policy regarding detention and treatment of persons held by our armed forces.

We write to urge you to support the Smith-Amash Amendment to the National Defense Authorization Act for (“NDAA”) the 2013 Fiscal Year. The Smith-Amash Amendment would roll back controversial and ill-advised detention provisions passed into law last year by banning indefinite detention within the United States and repealing a policy that mandates military custody for foreign terrorism suspects.

As retired general and flag officers, we do not make this request lightly. However, we strongly believe that sound national security policy depends on faithful adherence to the rule of law. Though it is lawful for the military to detain those engaged in hostilities in an armed conflict, the armed forces should not supplant our law enforcement and intelligence agencies at home. Those detained in the U.S. should not be held indefinitely without charge or trial or forced into military custody. Within the United States, those accused of terrorism crimes should face charges in a civilian court, consistent with our constitutional values.

We appreciate that our leaders are constantly striving to make America more secure, but the indefinite detention and mandatory military custody provisions passed into law in the Fiscal Year 2012 NDAA will do more harm than good. The Smith-Amash Amendment, if passed into law, would be an important first step towards reversing this damage.

The forty signatories are:

• General Ronald H. Griffith, USA (Ret.)
• General Joseph P. Hoar, USMC (Ret.)
• General Charles C. Krulak, USMC (Ret.)
• General David M. Maddox, USA (Ret.)
• Lieutenant General Robert G. Gard Jr., USA (Ret.)
• Lieutenant General Charles Otstott, USA (Ret.)
• Lieutenant General Harry E. Soyster, USA (Ret.)
• Major General Paul D. Eaton, USA (Ret.)
• Rear Admiral Don Guter, JAGC, USN (Ret.)
• Rear Admiral John D. Hutson, JAGC, USN (Ret.)
• Major General Melvyn S. Montano, ANG (Ret.)
• Major General William L. Nash, USA (Ret.)
• Major General Thomas J. Romig, USA (Ret.)
• Major General Walter L. Stewart, Jr., USA (Ret.)
• Major General Antonio M. Taguba, USA (Ret.)
• Brigadier General John Adams, USA (Ret.)
• Brigadier General David M. Brahms, USMC (Ret.)
• Brigadier General Stephen A. Cheney, USMC (Ret.)
• Brigadier General Evelyn P. Foote, USA (Ret.)
• Brigadier General Leif H. Hendrickson, USMC (Ret.)
• Brigadier General David R. Irvine, USA (Ret.)
• Brigadier General John H. Johns, USA (Ret.)
• Brigadier General Keith H. Kerr, CSMR (Ret.)
• Brigadier General Richard O’Meara, USA (Ret.)
• Brigadier General Murray G. Sagsveen, USA (Ret.)
• Brigadier General Anthony Verrengia, USAF (Ret.)
• Brigadier General Stephen N. Xenakis, USA (Ret.)

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Let’s begin with drones (which will get you if you don’t fill out the Reader Survey).

The Washington Post reports that Pakistanis angry about U.S. drone strikes have redirected their ire towards their own government.

Bill Quigley, a human rights lawyer and professor at Loyola University in New Orleans, outlines five reasons drone strikes are illegal in CounterPunch.

Turns out that Samir Khan, the U.S. citizen and late AQAP media guru—until American drones got the better of him in Yemen (guess who didn’t fill out our Reader Survey?)—produced a notable piece of work before his death. The Telegraph has images of four pages of his latest English-language recruiting manual, and ABC News and CNN also have the scoop on what’s in the guide. Some money quotes include:

Remaining clean throughout your jihadi career should never be overlooked due to the problems that may arise. . . . A daily shower is ideal but not possible in many cases.

I strongly recommend all the brothers and sisters coming from the West to consider attacking America in its own backyard. The effect is much greater, it always embarrasses the enemy, and these type of individual decision-making attacks are nearly impossible for them to contain.

If you feel terrified. . . . Close your eyes and imagine yourself inside paradise. Think of your hoor [virgins] that are awaiting you as well as meeting the prophets.

Note, please that the virgins come before the prophets.

The Associated Press tells us that Navy Cmdr. Walter Ruiz, lawyer for Guantanamo Bay detainee Mustafa Ahmad al-Hawsawi, has asked for testimony from eight top Bush and Obama administration officials in connection with a motion to dismiss the case over alleged command influence.

Lyle Denniston has a lengthy analysis in SCOTUSblog on whether Latif—which is on the Supreme Court’s conference agenda this week—is the answer to the dilemma facing detainee lawyers.

The Post states that President Obama issued an executive order giving the Treasury Department the “authority to freeze the U.S.-based assets of anyone who ‘obstructs’ implementation of the administration-backed political transition in Yemen.” That means YOU if you don’t fill out our Reader Survey.

And, in the latest from the TSA, guess who screeners decided to feel up this time. Call it a Moment of KissZENger. Guess he didn’t fill out our Reader Survey. . .

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and  singh.lawfare@gmail.com.

For those who may have missed this, I’m moving it back to the top of the blog. The more responses we get, the more useful it will be.

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I have largely refrained from commenting on the machinations over this year’s NDAA—in part because I’m still a little worn out from last year’s NDAA, and in part because the issue seems to me a bit of tempest in a teapot. But with debate on the bill set to begin tonight, I thought I should set out my thoughts both on the bill’s current language and on the proposed Smith-Amash amendment.

I fully agree with Steve that the bill’s current language (see Sec. 1033 on page 366) is completely inconsequential. Indeed, I would go a step further than Steve did and say that its very purpose is to be inconsequential. House Republicans were not prepared for the sagebrush rebellion that developed in the conservative world against the NDAA’s detention provisions—and for the resulting pressure Republican members have come under from their constituents on this issue. This pressure has produced a strong desire on the part of some members to appear to be changing things. At the same time, Buck McKeon and many of his colleagues don’t really want to change last year’s NDAA, which was, please remember, rather less detention-happy than what they had originally proposed. The result is a bill consciously designed to appear to shift gears—and thereby calm conservatives down—yet actually change nothing at all. How do you do this? Reiterate a right that already exists:

Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public 25 Law 107–40; 50 U.S.C. 1541 note).

I find this approach a little cowardly but, as a policy matter, pretty harmless—a little like Congress’s declaring that nothing in the NDAA shall be interpreted to deny that the earth is round. There’s a lot of legislation I would like to see Congress consider vis a vis detention and habeas. Reiterating that habeas is, in fact, available for the null-set of domestic detainees—a point that has gone unquestioned for decades—is pretty low down on my list. At the same time, I don’t have to keep angry constituents in check, and members of Congress do. So a provision that does no harm, well, does no harm. Enough said.

This brings us to the amendment by HASC ranking member Adam Smith and Republican Justin Amash, which actually would affect substantive changes to the NDAA detention authority. To be precise, as Bobby has explained, it would make two changes—one of which is, in my judgment, unquestionably a good idea, and the other of which is a more complicated proposition. For reasons I will explain, I tend to agree with Trevor that the Smith-Amash amendment is, on balance, sensible policy—though I have a mild concern about its specific language.

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The White House SAP on HR 4310 (NDAA FY’13) also has a brief reference to the proposed “military activities in cyberspace” provision, but it does little more than flag that the White House intends to engage on that topic:

Military Activities in Cyberspace: The Administration agrees that appropriate military operations in cyberspace are a vital component of national security, but objects to section 941, which seeks to clarify military authority to conduct clandestine cyber operations. The Administration has concerns about this provision and wants to work with the Congress to ensure that any such legislation adds clarity and value to our efforts in cyberspace.

More to come on this front, sooner or later.

The White House has issued a SAP (Statement of Administration Policy) threatening to veto HR 4310 (the NDAA FY ’13) on various grounds, including objections to the detainee provisions found in sections 1035-43 of the bill (summarized by me previously here) (h/t Politio’s Morning Defense).  I’ve not compared the language here to the language used last year in relation to NDAA FY’12 and earlier bills with similar detainee transfer notification/constraint provisions, but I do have a sense that this is a slightly stronger set of objections.  I note in particular the strong language in relation section 1041, which I had termed the Daqduq rule (1041 would require pre-transfer notification to Congress in relation to current detainees in Afghanistan).  In any event, here is the relevant part of the SAP:

Detainee Matters: The Administration strongly objects to sections 1035-1043, which would continue and in some cases expand unwise restrictions that would constrain the flexibility that our Nation’s armed forces and counterterrorism professionals need to deal with evolving threats. Section 1035, which would prohibit any detainee who has been repatriated to Micronesia, the Marshall Islands, or the Republic of Palau from traveling to the U.S., is unnecessary and could undermine our relations with a friendly government whose citizens may serve in the U.S. military. Sections 1036, 1037, 1038, and 1043 unnecessarily renew, supplement, or enhance the restrictions on the transfer of Guantanamo detainees into the United States or a foreign country. The Administration continues to strongly oppose these provisions, which intrude upon the Executive branch’s ability to carry out its military, national security, and foreign relations activities and to determine when and where to prosecute Guantanamo detainees. Likewise, the Administration opposes the notice and reporting requirements in sections 1040, 1041, and 1042, which would unnecessarily complicate and potentially compromise military operations and detention practices – including aboard naval vessels at sea. These sections, like section 1039, would also greatly add to the military’s administrative burden. Section 1041 is an unprecedented, unwarranted, and misguided intrusion into the military’s detention operations in a foreign combat theater during an active armed conflict. The reporting requirements seek to micromanage the decisions of experienced military commanders and diplomats, threaten to compromise the Executive’s ability to act swiftly and flexibly during a critical time for transition in Afghanistan, and could deter or jeopardize the success of effective foreign prosecutions. Sections 1036, 1037, and 1041, moreover, would, under certain circumstances, violate constitutional separation of powers principles. If the final bill presented to the President includes provisions that challenge critical executive branch authority, the President’s senior advisors would recommend that he veto the bill.

As Raffaela noted in today’s news summary, it is being reported today that EU naval forces attacked pirate bases on the Somali mainland.  Several people have asked: “The EU has a navy?”

The background here is legally, operationally, and diplomatically interesting.  These anti-piracy operations are conducted as part of a multilateral coalition, acting pursuant to several UN Security Council Resolutions, including UNSCR 1816 and 1851.  That latter resolution authorizes states cooperating with the Somali Transitional Federal Government (TFG) to conduct counter-piracy efforts in Somali territory and to suppress acts of piracy at sea.  The threat is difficult to combat militarily; the multilateral coalition is very large and diverse; and the Somali government is very weak.  It’s widely believed that the piracy problem must be dealt with on-shore, not just off-shore.  French forces reportedly detained several pirates on Somali territory in 2008.  There have been few other reports about counter-piracy activity on Somali soil since then, however, so this latest action could mark a significant move.

These attacks (which reportedly destroyed arms, boats and other supplies — but are not believed to have resulted in any deaths) were conducted by the EU Naval Force Somalia (EU NAVFOR), which is assembled within the framework of the European Common Security and Defence Policy (CSDP). The CSDP falls within the EU’s foreign and military policy domain, and in that regard its membership overlaps with but is not identical to NATO.  It’s a separate political structure that, along with its predecessor initiatives, has been part of a long-running effort by European states to develop a stronger independent security capability.  This has proven difficult to do that in a way that strengthens rather than erodes the NATO alliance and U.S. security guarantees, and certainly to do so without paying the large financial price.

Official information about the EU NAVFOR, including statements from the force commander about the latest actions, can be found here.

One final point about the operation: it allowed EU member states to take effective steps against piracy without having to detain anyone.  European states have wrestled mightily with the question of what to do with any pirates they take into custody.  These states are especially cautious about pirate detentions and transfers because of European Court of Human Rights jurisprudence, which sets a high bar for transfers to states where pirates face a possibility of mistreatment.  EU states also have been worried about bringing pirates to Europe for trials because the pirates might seek asylum.  An airborne operation directed only against the pirates’ tools of the trade avoids those complications entirely.

Over at DefCon Hill, Jeremy Herb shares a letter written by former Attorneys General Edwin Meese III and Michael Mukasey and former Secretary of Homeland Security Michael Chertoff to House Armed Services Committee Buck McKeon criticizing the various amendments that members of Congress plan to introduce tweaking the detention provisions of the 2013 NDAA. They explain:

As you are well aware, the law of armed conflict, also called the law of war, allows for a country engaged in armed conflict to detain the enemy for the duration of hostilities. That age old principle existed well before September 11, 2011 and is a right that all countries must retain during a time of war. Furthermore, the law of armed conflict does not discriminate between enemy combatants who are citizens of the United States and those that are not. Any citizen who joins al Qaeda or its affiliates is properly classified as an unlawful enemy combatant and may be treated as such. We find the notion propagated by some, that a citizen who has nothing to do with al Qaeda could be picked up off an American street and detained by the military, to be ridiculous.

Getting to the proposed amendments, they write:

Unfortunately, other members of Congress have introduced proposed legislation that would instead erode the authorities provided by the AUMF and limit the military’s ability to pursue terrorists. For instance, Representative Adam Smith and Senator Mark Udall have introduced legislation that would prevent the President from ever detaining anyone, including foreign terrorists, in the United States pursuant to the AUMF. Representative John Garamendi and Senator Dianne Feinstein have introduced similar legislation that would leave it up to Congress to decide when the President has the authority to detain U.S. citizens who have joined the enemy.

It is highly questionable whether either of these proposed pieces of legislation would be constitutional as they would deprive any president of lawful options that he may need in order to fulfill his constitutional duties as commander in chief to defend the United States and protect American citizens. Rewarding terrorists with greater rights for making it to the United States would actually incentivize them to come to our shores, or to recruit from within the United States, where they pose the greatest risk to the American people. Such a result is perverse.

We’ve blogged before about the “other” pending D.C. Circuit military commission case—al-Bahlul v. United States—including the petitioner’s request for initial en banc hearing. That request has now been summarily denied by the D.C. Circuit in this order, which notes that none of the eight active judges requested a vote on the question.

I can’t say the result is surprising. If nothing else, though, the petition may at least have helped to frame things for the Hamdan panel both with respect to the differences between the two cases and why the constitutionality of the material support provision matters beyond Hamdan… As for al-Bahlul, look for oral argument before a three-judge panel to be scheduled for sometime in September.

Ken already wrote up Jen Daskal’s new article, “The Geography of the Battlefield: A Framework for Detention and Targeting Outside of the ‘Hot’ Conflict Zone,” so I won’t summarize it again here. It’s a particularly thoughtful piece and will challenge those who come to the subject from the security world, the human rights world, or—as Jen does—both. Jen is currently a fellow at the Georgetown Center on National Security and the Law, but she has done stints at both Human Rights Watch and at the National Security Division of the Justice Department. She thus brings an uncommon set of sensibilities, as well as a great deal of her own thought, to the vexing question of how we should think about confronting terrorists who are outside of obvious battlefields but nonetheless reasonably within the ambit of the AUMF. Jen dropped by the other day for a chat about the article, which I highly recommend.

All too often in Washington, we focus our attention on the “important” legal issues and lose sight of the fact that most of the law and policy is made at a lower level where significant legal and planning decisions are made in the background.  A case in point is the newly issued plan “Considerations for United States – Canada Border Traffic Disruption Management.”  The plan is a

planning framework for border traffic disruptions management which requires the involvement and coordination of multiple agencies, organizations, and entities. It identifies key stakeholders in border communities and outlines critical issues to consider when developing or updating existing plans for managing the flow of traffic (people and goods) to and away from the border during a large-scale traffic disruption.

In plain English, its a guideline on how to deal with a major traffic disruption like the one that happened in the immediate aftermath of 9/11, when most of our border crossings with Canada were simply closed.  Given that Canada is our largest trading partner, any effort to plan to avoid, or ameliorate a disruption is fundamentally a good idea — and this document is an excellent starting point.  Will it save the world?  Hardly.  Is it “important”?  Not in any political sense.  But it is deeply practical and sensible.  It’s nice to be reminded that government sometimes does that too.

I have thus far stayed fairly mum on the FY2013 National Defense Authorization Act, if for no other reason than the 150 exams (now 80) that I have to grade. That said, there’s an alarming meme emerging from the House Republicans in the discourse over the detention provisions of the FY2013 NDAA that needs to be rebutted before folks actually take it seriously:

The short version is as follows: In response to a series of competing proposals formally to codify a ban on domestic military detention, especially the bipartisan Smith-Amash bill, the House Armed Services Committee has circulated a letter to Chairman McKeon co-authored by former high-ranking Reagan and Bush (II) administration officials arguing that such a ban is unnecessary because both existing legislation and the FY2013 NDAA are sufficiently clear on this issue—and because proposals like the Smith-Amash bill “attempt[] to exploit misconceptions about the [FY2012] NDAA.” [Update: The letter is available here.] Trevor already wrote quite cogently about why the Republican scare-mongering re: the Smith-Amash bill and similar proposals fails to persuade; I just want to add two additional points worth keeping in mind as part of this conversation—and do so below the fold.

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As usual, SCOTUSblog has a helpful post summarizing some of the key petitions for certiorari that the Supreme Court’s nine Justices are set to review at their Conference this Friday. I just thought I’d flag it here because two of the “headliners” are both high-profile national security cases about which we have blogged (just a bit) previously—Latif v. Obama [presumption of authenticity for intelligence reports in Guantanamo habeas cases] and Clapper v. Amnesty Int’l [private plaintiffs' standing to challenge constitutionality of key provisions of the FISA Amendments Act of 2008].

I’m not a betting man, but as difficult as it is to handicap the odds of a grant in Latif, I think the odds of a grant in Clapper are considerably better than even. We’ll know more (probably) at 10 a.m. next Monday…

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Not only are civil liberties groups opposed to the White House-endorsed cybersecurity bill, but they don’t like the Republican-sponsored one that passed the House much either. Brendan Sasso at The Hill has the story. Meanwhile, Sasso and his colleague Andrew Feinberg tell us that this morning there is a bipartisan discussion among senators attempting to find common ground on the issue.

Joshua Foust argues over at The Atlantic that the U.S.’s current strategy in Yemen is not enough:

The challenge in Yemen is, ultimately, a political one: an illegitimate government struggling with multiple resistance and rebellion movements, in addition to a terrorist movement slowly making inroads into one of them. That’s probably not a challenge that can be ultimately solved by sending in JSOC and firing a bunch of drones into the desert; it is a challenge that requires a comprehensive political, economic, and social framework for addressing the many facets of the problem. Of course, the U.S. also has diplomats in Yemen, and many policy and economic analysts back in Washington are working tirelessly on the country’s problems. But the point is that terrorist-killing drones are not the answer.

A notorious pirate base in Somalia has been attacked for the first time by EU forces, write Jeffrey Gettleman and Paul Geitner over at the New York Times.

Marc Thiessen pleads in his Washington Post column today to not kill AQAP bomb-maker Ibrahim Hassan al-Asiri.

Iran announced today that it has executed a man accused of being an Israeli spy, writes Alan Cowell at the New York Times.

Gen. John Allen will be leaving his post in Afghanistan to lead the U.S. European Command, says Greg Jaffe at the Washington Post. Tom Bowman on Weekend Edition Saturday reported  on the U.S.’s efforts to pass on responsibility for the fight in Afghanistan to the locals.

Craig Whitlock at the Post tells us about the U.S. military’s efforts to train African soldiers to fight al Qaeda in Somalia.

For more interesting law and security-related articles, follow us on Twitter, visit the Georgetown Center on National Security and the Law’s Security Law Brief, Fordham Law’s Center on National Security’s Morning Brief, and Fordham Law’s Cyber Brief. Email us noteworthy articles we may have missed at wakeman.lawfare@gmail.com and  singh.lawfare@gmail.com.

As Bobby noted previously, Rep. Adam Smith and others are proposing amendments to this year’s NDAA that would make certain changes to the detention-related provisions implemented by last year’s NDAA.  Among other things, the Smith Amendment would effectively prohibit the military detention of anyone arrested or captured within the United States.  Thus, in order for the USG to engage in long-term detention of terrorists apprehended domestically, it would need to prosecute and convict them in federal court.

I am inclined to think the Smith Amendment is sensible as a policy matter, but this is a difficult area and there are reasonable arguments on both sides.  Some of the arguments, however, aren’t reasonable at all.  This story in The Hill provides an example:

I discuss some problems with this claim after the jump.

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