veto threat re Defense Authorization Act; National Security Division Progress Report

1. Statement of Administration Policy on the National Defense Authorization Act

OMB has issued an SAP setting forth the Administration’s views on S.3001, the defense authorization bill.  The SAP is here.  There are many interesting features in the SAP.  In relevant part, for example, the SAP states that if “S. 3001 were presented to the President, his senior advisers would recommend that he veto the bill, especially if the bill includes the following provisions:

  • Private Security Contractors in Combat Zones: The Administration strongly opposes section 841, which defines most security functions in a combat zone as “inherently governmental” and restricts the use of contractor personnel for those functions.  This provision would significantly increase the reliance on already stretched military forces and reduce the options for providing security for non-military personnel, which could impede the ability to provide humanitarian and reconstruction relief in combat zones.  Furthermore, the Departments of State and Defense have significantly improved the policy and guidelines governing the activities of private security contractors. These improvements ensure that private security contractors operate under strict rules for the use of force that are defensive in nature, carefully supervised, and allow the use of deadly force only as a last resort in response to imminent threats and in the exercise of the inherent individual right of self-defense.
  • Prohibition on Interrogation of Detainees by Contractor Personnel: The Administration strongly objects to requirements that would prevent the Department of Defense (DoD) from conducting lawful interrogations in the most effective manner by restricting the process solely to government personnel; in some cases, a contract interrogator maypossess the best combination of skills to obtain the needed information.  Such a provision would unduly limit the United States’ ability to obtain intelligence needed to protect Americans from attack.

  • Defense Intelligence Matters: The Administration strongly opposes sections 921, 922, and 923, which interfere with Executive Branch authorities and responsibilities. Section 921 interferes with the President’s authority to supervise and manage the Executive Branch by requiring that active duty military officers, not civilians, serve as the Deputies to the intelligence chiefs of the military departments, thus inappropriately and unnecessarily limiting the pool of individuals from which the President may select the senior military advisers in question.  Section 921 could also, if the new qualifications it imposes are applied to existing officeholders, usurp the President’s exclusive authority to remove Executive Branch officers by rendering the existing office holders unqualified for their offices and thus attempting a constitutionally improper de facto legislative removal of the existing officers. Section 922 reorganizes elements of the Secretary of Defense’s senior staff and eliminates Undersecretary of Defense for Intelligence (USD(I)) authorities to execute technology and acquisition programs or provide operational support to combatant commands.  Section 923 would intrude on the President’s constitutional authority to control and regulate access to classified national security information by requiring that the Department carry out the Advanced Sensor Applications Program, by specifying which organizations will execute and oversee the program, and by purporting legislatively to mandate that particular individuals with program authority shall have “complete access” and “current” updates on specific types of military and foreign intelligence information.  Together, these provisions interfere with staff-level Executive Branch assignments and prevent USD(I) from carrying out the activities for which it was created.

Potential Amendments:

  • Intelligence Interrogations: The Administration strongly opposes any amendment that would impose a requirement to video-record all intelligence interrogations, which is impractical, burdensome, and runs the risk of significant unintended consequences in current and future military operations.  Further, the Administration strongly opposes any amendment that would prevent the Intelligence Community from conducting lawful interrogations in the most effective manner by restricting the process solely to Government personnel; as noted above, in some cases, a contract interrogator may possess the best combination of skills to obtain the needed information.

There is much more interesting stuff in the SAP – certainly worth a read.

2. DOJ National Security Division, “Progress Report” (April 2008)

DOJ has posted the April 2008 National Security Division Progress Report to its website.  The 70-page document is here.  It provides a very handy overview for students or others who are not familiar with the organizational structure of the NSD, the Counterterrorism Section, the Counterespionage Section, or the Office of Intelligence.

Lead Author

Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
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