Former government attorneys and defense experts fear that foreign terrorists could capitalize on a new House proposal that would afford them full protection under the U.S. legal system, potentially spurring a domestic influx of would-be terrorists who may seek to exploit the legal loophole.
The amendment, spearheaded by Reps. Justin Amash (R., Mich.) and Adam Smith (D., Wash), would implement an unprecedented reversal in longstanding U.S. policy by requiring that terrorists be prosecuted in civilian courts—a shift that would also allow them to be housed among general inmates in American prisons.
The amendment would prevent the president from effectively fighting the war on terror, thereby posing a serious threat to the country’s national security, experts warn.
"In order to be able to successfully fight and win this war, we need to support the notion that this is a real war," said David Rivkin, who provided legal counsel in the administrations of Presidents Ronald Reagan and George H.W. Bush. "Anything that delegitimizes the laws of war is a horrible thing symbolically in terms of undermining a fragile consensus."
Smith and Amash, Rivkin said, are unraveling a delicate legal balance that permits the president to effectively "fight and win" the war on terror.
"It is bad symbolism and would have bad policy consequences," said Rivkin, who is currently a litigator at the D.C.-based Baker Hostetler law firm. "It is extremely jarring and bad that you have the Tea Party and the libertarian wing of the Republican party challenging with gusto the same aspects of national security policies like the left did" when George W. Bush was president.
In an effort to ensure that their amendment becomes law, Smith and Amash have engaged in what observers characterize as a deceptive fear campaign meant to coerce the public into supporting their proposal.
The lawmakers—as well as organizations such as the American Civil Liberties Union—have claimed that under current regulations American citizens with no affiliations or ties to al Qaeda could be detained indefinitely without trial.
Current law "doesn’t prevent the government from snatching Americans from their homes based on accusations that they’ve ‘substantially supported’ forces ‘associated’ with terrorists," Amash recently wrote in a dear colleague letter. "It does nothing to stop the government from locking them up for the rest of their lives."
Regulations currently on the books clearly shield both rights for American citizens, however.
"The Smith-Amash language is about fear, not fact," said one senior Capitol Hill aide who is knowledgeable about the plan. "It’s a perverse encouragement for terrorists to attack us here at home, where they’d get legal protections."
The duo aims to "gives terrorists better legal protections than our troops," added the source. "A soldier who commits a crime gets thrown in the stockade. A terrorist gets a federal judge."
Smith and Amash are set to offer their plan as an amendment to the fiscal year 2013 National Defense Authorization Act (NDAA), a critical piece of legislation that allocates the Defense Department’s yearly expenditures. If the controversial language is attached, the essential bill could stagnate as members debate the dangers of affording terrorists greater legal protections.
Establishing such roadblocks in the war on terror could have deadly consequences, according to high-profile lawyers who recently came out against the amendment.
"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," the experts wrote in a letter to Rep. Howard "Buck" McKeon, chairman of the House Armed Services Committee. "Such a result is perverse."
The longtime experts—among them Rivkin, former Secretary of Homeland Security Michael Chertoff, and former U.S. Attorneys General Edwin Meese and Michael Mukasey—explained that tough detainee policies will become more critical as U.S. forces prepare to depart Afghanistan.
Questioning the constitutionality of the Amash-Smith language, the experts went on to label the lawmakers’ arguments as far-fetched.
"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," they write.
Previous incarnations of the country’s wartime detainee policy have explicitly stated that the law should not be interpreted as a negation of any American citizen’s rights.
Libertarian hero and former Republican presidential candidate Ron Paul came out today in support of the Amash-Smith amendment. A handful of other congressmen have stated their support of the amendment, including Howard Berman (D., Calif.), Jeff Duncan (R., S.C.), John Garamendi (D., Calif.), John Duncan (R., Tenn.), Hank Johnson (D., Ga.), Paul Gosar (R., Ariz.), Mazie Hirono (D., Hawaii), Sheila Jackson Lee (D., Texas), Scott Tipton (R., Colo.), and Raul Labrador (R., Idaho.).
Republican leaders in the House are currently offering an alternative amendment to the NDAA that would clarify the existing law.
"We ask that you oppose Ranking Member Smith and Representative Amash’s amendment," Reps. Scott Rigell (R., Va.) and Jeff Landry (R., La.) wrote in a recent letter to their colleagues. "The Smith-Amash amendment would apply to foreign terrorists like the Underwear Bomber, would interfere with U.S. Supreme Court precedent, and the inherent rights of any nation during a time of war."
"We must ensure," they add, "that we do not weaken our nation’s defenses against the foreign terrorist organizations who seek to deprive us of our life and liberty."
The Obama Administration, in a statement released yesterday, threatened to veto the NDAA.