House Republicans have found a way to circumvent those bothersome Budget Control Act (BCA) spending caps. On MSNBC's Morning Joe this morning, Rep. Mac Thornberry (R-TX), chairman of the House Armed Services Committee, brazenly stated that the $611.9 billion defense authorization bill, which was passed by the House today, adheres to the BCA cap on discretionary defense spending. How, you may be asking, is it possible to authorize $89 billion more than the caps and still adhere to them? Simple: funnel the money through a slush fund that is not beholden to the spending caps, in this case the Overseas Contingency Operations (OCO) account.
Using the OCO account to supplement discretionary defense spending is so common nowadays that Chairman Thornberry explains the Republicans' actions as if we should applaud him and his colleagues for saving the defense budget.
The caps are a concern, but we found a way to add to the Overseas Contingency account, so that we in the House budget and the defense bill on the floor right now meet exactly the amount the president has ask for.
You see what he did there? He is able to say that the Republicans are honoring the caps (the ones they agreed to in 2011) while giving the president the defense spending he requested. Clever. But maybe too clever. Congressional Democrats don’t seem to be persuaded. Even the president is opposed to the bill (albeit because of some particulars of the bill, not the topline spending amount).
House Minority Leader Nancy Pelosi (D-CA) called the bill “disingenuous” and “dangerous,” stating that the “Republicans are trying to use war funding as a virtual slush fund for one part of the budget while letting the ax fall on everything else.” While I’m not in the habit of agreeing with Rep. Pelosi, she is right in this case.
In its markup of the National Defense Authorization Act, the House Armed Services Committee proposed a number of changes to the Obama administration’s plans for the U.S. Navy. The NDAA rescinds the retirement of three cruisers and restricts retirement of ballistic missile submarines (so as not to fall below a minimum of 12). The bill also contains an amendment which authorizes a GAO review of the Littoral Combat Ship (LCS) program. The amendments collectively reflect the Committee’s concern that the Navy won’t be able to fulfill its current missions with fewer and perhaps less capable ships. Unfortunately, no one is asking whether any of those missions could be modified, eliminated, or shifted to others.
I will address some of those issues at a Cato policy forum this Monday, May 21, at noon. I am particularly thrilled to be joined by Under Secretary of the Navy Robert O. Work, Ben Freeman of the Project on Government Oversight, and Eric J. Labs of the Congressional Budget Office. Those three make this an all-star cast to discuss the future of a U.S. surface fleet that is undergoing some major changes. With the retirement of the Navy’s cruisers and frigates, the development of bigger and more complex destroyers, and the introduction of the LCS tomorrow’s surface fleet will look quite different than today’s.
Congress is particularly concerned about the LCS because of reports of design and construction flaws and operational problems, including this letter issued by the Project on Government Oversight, and a subsequent article in Aviation Week. But some are also concerned that even though LCSs eventually will constitute about one-third of the Navy’s surface combatants, the LCS is not supposed to engage in combat. In addition, its mission modules, especially the anti-submarine warfare package, are years away from operability.
Our panel will address many of the questions swirling around the surface fleet today, including: How will the replacement of thirty frigates with the still-untested LCS affect the Navy’s overall capability? Will the ballistic missile defense requirement reduce the availability of destroyers for other missions? Could the Navy pursue a different strategy to advance U.S. national security that could be executed with fewer ships? Of course, the answers to all of those questions are framed within the context of declining procurement budgets. Given that reality, one could argue that the greatest threat to the U.S. Navy’s surface fleet is its undersea fleet: the looming SSBN(X) program could devour the shipbuilding budget for a decade.
So, with no shortage of difficult and far-reaching decisions ahead for the Navy, it is a privilege to have Under Secretary Work, Ben, and Eric to help us navigate the way. I hope you can join us on Monday.
Cross-posted from the Skeptics at the National Interest.
Both Houses have now passed the 2012 Defense Authorization Bill. The president, having dropped his veto threat, will sign it today. That’s too bad.
Authorization bills, keep in mind, are essentially a collection of restrictions and permissions slips for appropriations. In practice, however, budgeteers and appropriators have more say over how we spend. So while authorizers share responsibility for our bloated military spending, I’ll save my customary complaints on that topic for the appropriations bill and focus here on the new policies this bill sets.
On the positive side, the bill creates several reporting requirements that slightly aid future efforts to trim our military ambitions and spending. It requires the Pentagon to look at accelerating the minor drawdown in nuclear weapons required by the New Start Treaty. Another report is to examine options for shrinking our ballistic missile submarine fleet, which could save several hundred billion dollars annually. The bill also requires the administration to produce “independent” studies of overseas basing costs and opportunities for savings. These reports are not likely to themselves promote much change, but they might serve as ammunition for those that do.
A little-noted problem with the bill is that it authorizes the shift of base Pentagon spending to the Overseas Contingency Operations account---the war account. Because the Budget Control Act caps military spending but not war funding, costs shifted from the former to the latter reduce the cuts needed to get under the caps, creating an illusion of savings. Appropriators are trying to protect around $10 billion in base defense costs for 2012 using this ploy. Analysts are still figuring how big a shift in funds the authorization bill endorses. But as Taxpayers for Common Sense has noted, the answer is at least several billion.
The Senate on Thursday passed the 2012 defense-authorization bill. It includes a controversial provision meant to put al-Qaeda suspects and their associates in military custody rather than prosecute them as criminals. The White House has rather weakly threatened a veto, complaining primarily that the bill undercuts their discretion in dealing with terrorists.
If the White House vetoes the bill, it will be for the wrong reasons. The trouble is not what the law mandates but what it affirms. It does not require the president to put any terrorists in military custody but rather to comply with a new bureaucratic process if he chooses not to do so. Even as we move toward the end of the wars in Iraq and Afghanistan, the law affirms a presidential power to detain anyone, including American citizens, in the name of fighting a nebulous and seemingly permanent terrorist menace. That is bad for both civil liberties and for our ability to think clearly about terrorism.
Most debate about the bill concerns section 1032. It says that the armed forces “shall hold” anyone that is part of al-Qaeda or an associated force and participants in an attack on the United States or its coalition partners for the course of hostilities authorized by Congress in 2001—and dispose of those suspects under laws of wars. American citizens are excluded. Thanks to a compromise negotiated by Armed Service Committee Chair Carl Levin (D-MI) and Ranking Member John McCain (R-AZ), the section now allows the secretary of defense, after consulting with the secretary of state and director of national intelligence, to keep the suspect in civilian courts by informing Congress that doing so serves national security.
The administration objects to 1032 largely because it undercuts their discretion. However, as Levin and McCain note in a recent op-ed, the administration still “determines whether a detainee meets the criteria for military custody.” The president could presumably just decline to label a detainee as someone fitting the requirements of military detention in the first place and try him in civilian court without getting a waiver from the secretary of defense.
The provision’s main relevance is as a talking point. Republicans already fond of castigating the president for allowing alleged terrorists to have their day in court can pretend that he is ignoring this law when he does so.
The real trouble with the bill is the preceding section, 1031. It “affirms” that the authorization of military force passed prior to the invasion of Afghanistan allows the president, through the military, to detain without trial al-Qaeda members, Taliban fighters, associated forces engaged in hostilities against the United States and those that support those groups. Nothing excludes American citizens.
The section says that it does not expand presidential war powers, but that contradicts its other language and common sense. By explicitly endorsing constitutionally dubious powers that the president already claims, Congress makes those claims more likely to survive legal challenge.
The 2001 Authorization of Military Force allows the president to make war on “nations, organizations, or persons” that he determines to have been involved in or aided the September 11 attacks and those that harbored these groups. Effectively, that meant al-Qaeda and the Taliban. Our last two presidents have used that authority to claim the right to kill or indefinitely detain anyone, anywhere that they decide is associated with some arm of al-Qaeda. The courts have trimmed these powers in ways that remain uncertain, particularly as applied to U.S. citizens. In Hamdi v. Rumsfeld, the Supreme Court held that the U.S. military has the power to detain without trial Americans captured on foreign battlefields but that the detainee can challenge the detention in court. Contrary to Carl Levin’s assertions, the ruling did not say that people seized in the United States fit that category.
This defense bill’s expansive list of enemies strengthens the president’s claim that he can detain almost anyone without trial in the name of counterterrorism. Future White House lawyers will cite it to justify those powers. Courts may tell Americans that challenge their detention on constitutional grounds that Congress’s endorsement of the president’s claims to detention powers makes them sounder.
The bill may even strengthen the president’s case for using other war powers, like killing citizens with drone strikes. That interpretation is bolstered by the detainee language’s similarity to the reauthorization of force contained in the House’s defense bill. That legislation explicitly gives the president the power to make war on al-Qaeda, the Taliban and associated forces. By using nearly identical language to describe who the president can detain under his war powers, the Senate bill may stealthily achieve the same end.
Liberalism means minimizing the exercise of war powers. To say, as backers of this legislation do, that the constitution allows our government to kill and detain people without trial is not an argument that we should do so often. Because those powers so offend liberalism, those that advocate them should have the burden of explaining why they are necessary, even if they are constitutional.
Instead, advocates of these extraordinary powers take it as nearly self-evident that military detention is somehow safer than criminal trials. But criminal proceedings, because they are adversarial, produce better information than military interrogations. That information makes the public better consumers of counterterrorism policies. Public debate does not always make better public policy, but it often helps.
You can see how by looking at the footnotes of books about terrorism, like the 9-11 report. Many of sources are records of criminal trials of terrorists. Had all those suspects been held without trial, their testimony and the government's claims about them might have remained secret. What did become public would be less trustworthy because it would not have been vetted by an institutional adversary, as in court.
Take the case of Umar Farouk Abdulmutallab, the Underwear Bomber, and its connection to the killing of Anwar al-Awlaki, the jihadist propagandist killed earlier this year in Yemen. Both before and after getting a Miranda warning, Abdulmutallab apparently told his FBI interrogators a great deal of information about his trip to Yemen to prepare the explosives he tried to detonate in plane over Detroit. Had he not plead guilty on the first day of trial, prosecutors were set to argue that Awlaki had aided the plot. The government would have had to substantiate its claim that Awlaki, an American citizen, had graduated from being a propagandist to plotting attacks and therefore become a combatant they could legally kill—something they still have not done. The trial would have shed light on how the White House decides which of its citizens it can kill in the name of counterterrorism. That information would at least inform debate.
Civil liberties are a sufficient reason to oppose handing the executive the power to detain more or less whomever it wants. But our system of government does not divide powers simply for fairness. Unilateral decisions are more likely to be foolish ones.
Cross-posted from the Skeptics at the National Interest.