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Rep. Thornberry on Removing Some Lawful Options While Keeping Others

Wells Bennett
Wednesday, June 6, 2012, 8:38 PM
Raff pointed earlier to a USA Today op-ed by Rep. Mac Thornberry (R-Texas), the Vice Chairman of the House Armed Services committee.

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Raff pointed earlier to a USA Today op-ed by Rep. Mac Thornberry (R-Texas), the Vice Chairman of the House Armed Services committee.  His piece is styled as a response – an “opposing view,” in USA Today parlance - to an editorial in the paper, entitled “Indefinite Detention is Un-american.”  The latter critiques the NDAA, and frets over the lurking possibility that citizens within the United States might be detained indefinitely by the military - and denied constitutional rights. Thornberry’s response, in a nutshell, is that citizens needn’t worry too much.  Habeas is always waiting in ready reserve, he argues, should this or another Administration elect to detain domestically-arrested citizens under the NDAA.  As a consequence, there's no need to tweak current law, despite alarmist claims to the contrary. What struck me most was not Thornberry’s argument, but the way in which he made it – in particular, the way he characterized the defeated proposal by Representatives Justin Amash (R-MI) and Adam Smith (D-Wash).  Note the title of Thornberry's piece: “Leave Counterterrorism Alone.”  Or, as it was described elsewhere on USA Today's website, “Don’t Mess With Success.”  I would not attribute these specific headlines to Thornberry, but they're not an unreasonable summary of his argument. The op-ed does clearly suggest that Congress should not go along with the Smith-Amash bill - which, according to Thornberry, would limit the executive's options for combating terrorism.  The words below are the Congressman's, the emphasis mine:
Throughout the last decade, there has been a debate about whether we should deal with terrorism as crime or as war. The answer is that we need the best tools from each and the flexibility to use them appropriately. This approach does not alter or endanger our constitutional rights. Past efforts to protect Americans have taken place within an existing legal and policy framework that is consistent with the approach that the U.S. and other nations have used since at least World War II. Despite claims to the contrary, the defense bill has not created any new, or changed any existing, legal authorities. Proposals such as the amendment by Reps. Adam Smith, D-Wash., and Justin Amash, R-Mich., would change the framework by requiring that every terrorist, whether here legally or not, be granted the full constitutional rights of an American citizen. Granting foreign terrorists additional privileges — including the right to remain silent — would make it harder to get the timely information we need to prevent attacks. It would also mean that for the first time, we would voluntarily remove lawful options from our counterterrorism arsenal.
It follows that we ought to see existing law’s flexibility - its extension to the President of more than one way of stopping a given terrorist threat - as a good thing.  Smith-Amash would take away such flexibility, and is therefore bad. But here’s the trouble.  Thornberry supports “voluntarily remov[ing] lawful options from our counterterrorism arsenal.” He just wants to remove different ones than those affected by the Smith-Amash Amendment. Time-travel back to the roll call vote in the House, on the evening of May 17.  Thornberry then voted for the exquisitely wrongheaded Rooney Amendment – the provision in the House bill that would allow only military commission trials, and preclude federal criminal trials, in cases where a foreign terrorist has committed an offense within the commission's statutory jurisdiction. So no civilian trials, ever, when a commission trial is theoretically possible.  How’s that for voluntarily removing a “lawful option?” The Congressman evidently wants the President not to be able to pursue federal prosecution for some terrorists, even when circumstances point in that direction.  To name but one of many obvious problems with this approach, what if an ally won’t hand over a terrorist for prosecution before a military commission, but will hand him over for prosecution in a civilian court?  I gather that in Thornberry’s view, the executive then gets to live with the “option” of no trial at all? Appropriate flexibility, indeed - the kind that, hopefully, won't find its way into the final version of next year's NDAA.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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