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.)

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.

We’d love to get feedback on the site. We’d also like to learn more about our readership—who it is, what issues people are most concerned with, and how we are or are not meeting reader needs. We very much appreciate your taking the time to fill out the following survey:

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.

The easy part of the Smith-Amash amendment, in my view, is its repeal of Section 1022 of last year’s NDAA—the so-called mandatory detention provision. As Bobby and I have repeatedly explained, there’s nothing very mandatory about the final language of this provision, and the administration’s interpretive guidance renders it something of a nullity in operational terms. That said, the provision remains offensive on a symbolic level, standing for the proposition that the default option for handling domestic Al Qaeda operatives is military detention and requiring high-level consultations in order to deviate from that default. While I do not believe the law, as interpreted by the administration, will cause on-the-ground operational problems, I do think this is a bad message for Congress to send. And repealing it would thus be a healthy exercise in civic hygiene.

The harder question is the bill’s other provision, which would preclude military detention "In the case of a covered person who is detained in the United States” and would require in such situations that “disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall
only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court.” It also requires that “No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention” under the NDAA.

The universe of people to whom this provision would apply is, as a preliminary matter, zero—at least for the foreseeable future. The Obama administration has said it means to use only the criminal justice system domestically, so the fact that the NDAA neither authorizes nor precludes domestic military detention does not mean such detention is likely under current law. I doubt very much that a Romney administration will be any keener than is the Obama administration to create new Padilla or Al Marri cases—that is, to indulge in the long-term military detention of someone captured domestically. So the issue is something of a hypothetical one—and I agree with Steve that is far less important than a raft of questions related to the detention rules for the hundreds of people we actually are detaining abroad.

But domestic detention authority has special resonance, as the NDAA debate shows. So for what it’s worth, here’s what I think.

I am not opposed to having a domestic detention statute. In fact, I proposed one in my book Law and the Long War, and I continue to think that a carefully drawn bill to deal with those very rare Padilla-like cases may be worthwhile. At the same time, I am cognizant of the fact that the tiny universe of such cases may not justify the significant legislative effort it would require to produce such law. And I do not like the idea of simply permitting law of war detention for domestic captures on the same terms as we permit it for overseas captures. So while I would prefer a statute requiring that any domestic non-criminal counterterrorism detentions be conducted according to specified procedures, the question we face has become more binary: Do we want raw military detention available domestically or do we not?

As a strong defender of the propriety of military detention in the counterterrorism context, I would prefer—given that binary choice—to force all domestic detention cases into the criminal justice system. The even-theoretical availability of detention powers domestically gives rise to legitimacy problems for detention more broadly. As a practical matter, I can envision very few cases in which the executive would—under current law—test its power to detain an Al Qaeda persons domestically outside of the criminal justice system again; the behavior of both the late Bush administration and the Obama administration have demonstrated great reluctance on this score. And our intelligence and law enforcement forces are today far-better-positioned to handle the Padillas and Al Marris in the federal courts than they were a decade ago. The result is that the amendment may have zero practical impact—merely requiring the course that the government would pursue anyway.

My only real concern about this amendment is that I think it might inadvertently preclude the closure of Guantanamo. As readers know, I personally don’t care whether Guantanamo stays or goes. But it’s worth noting that the bill, at least as drafted, would seem to turn any detainee brought from Guantanamo to some new detention facility in the United States into “a covered person who is detained in the United States.” It would thus require “the immediate transfer of the person for trial.” The perverse consequence of this would be to ensure that all detention of people captured abroad would take place abroad—thus burying once and for all any chance of Guantanamo’s closure. I doubt very much that’s what Rep. Smith means to do. If it’s not, he might tinker with his language slightly to make that clear.

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.

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.

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.

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.

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.