An odd blueprint for national defense

The National Defense Authorization Act (NDAA) is a serious piece of legislation that serves as the legislative blueprint for America’s defense policy. But the House-passed NDAA that the Senate is also considering is a seriously flawed document. The bill is flawed from constitutional, judicial and national security perspectives, and trivialized by attempts to reopen established, bipartisan defense policies along ideological and patronage lines, without debate. And given the current kerfuffle surrounding the Libyan incursion, it inserts a certain amount of schizophrenia. 

First, it is surprising — and to a soldier, confusing — to see the same body that voted to criticize the White House for using executive authority to open a conflict in Libya pass a bill that further concentrates executive power to wage war. During the previous administration, Congress ceded a significant amount of authority to the president in both the 2001 Authorization for Use of Military Force and the Patriot Act. In fact, the so-called “revolt of the generals” in the spring of 2006, in which I took part, was a reaction to what a number of us in the military perceived as a constitutional crisis, with war powers concentrated in the hands of three men — the president, his vice president and the secretary of Defense. We spoke out because we believed the outcomes were not good for the country or our democracy.

{mosads}It is not broadly enough understood that the 2011 NDAA as currently drafted would broaden executive authority further, to what legal and national security experts say is a dangerous vagueness. According to Joseph Margulies, a law professor at Northwestern University: “The language insisting upon a connection to September 11 has been removed, along with the requirement that military action be intended to prevent ‘future acts’ of terrorism against the United States. … No one quite knows what ‘forces’ might be considered ‘associated,’ or what ‘support ‘is ‘substantial.’ Congress has not troubled itself with definitions.” 

This is a troubling abdication. Those of us who have served, are serving or have our youth committed to armed conflict very much want the nation involved in the decision to send the youth of America to war. The authors of the U.S. Constitution intended a role for Congress to preclude rash use or overuse of the nation’s armed forces. 

Imagine the interpretation of this language that would allow a future president to apply the terms “substantially supporting” or “directly supported” to Iran regarding current or future activities that country elects to pursue with the Taliban or al Qaeda.

Second, the NDAA furthers the current trend of militarization of our judiciary by institutionalizing the Guantánamo Detention Facility and military commissions. This has three serious problems. First, it keeps in place what remains a superb al Qaeda recruiting tool at Guantánamo. Second, it diminishes the brilliant work our civilian law enforcement team is doing. Finally, it raises the status of those who would blow up our aircraft and public places. They are not warriors. They are criminals. 

{mosads}Some of our most important and most difficult work in Afghanistan and Iraq remains the development of a civil court system and a law enforcement construct that remains fair and devoid of the heavy hand of the state and the military. The U.S. judicial system is a model that we can be proud of, and that has been hugely successful in the counterterrorism work critical to U.S. safety. The judicial system has tried more than 400 cases of terrorism in Article III Federal Courts with a conviction rate that approaches 100 percent. Military commissions to date have tried four cases, with two convictions. Moreover, the implication that military commissions will achieve a higher conviction rate than federal courts applies the ugly inference that military courts will tolerate legal procedures that would not survive civilian judicial scrutiny. 

Third, the NDAA exacerbates the current trend of using a small professional military that is increasingly delinked from the society it serves, to solve America’s foreign policy problems — something that is not what our men and women in uniform signed up for, not cost-effective and not befitting a great power. 

Another way of looking at the NDAA is that it attempts to limit the president’s traditional role in law enforcement, yet grants substantially greater power to take the nation to war at a time when more than 150,000 American families wake up wondering if there is a government car outside prepared to deliver the very worst possible news. 

Truly odd behavior.

Eaton served more than 30 years in the U.S. Army, and from 2003-2004, he developed, designed and led the training of the Iraqi military. Currently, he is a senior adviser at the National Security Network.