Why Upcoming Defense Bill Is a Magnet for Controversy

WASHINGTON, DC - MAY 20: U.S. Sen. Carl Levin (D-MI) (L), Chairman of the Senate Investigations Subcommittee, and U.S. Sen. John McCain (R-AZ) speak to reporters during a briefing on Capitol Hill, May 20, 2013 in Washington, DC. The briefing was held in advance of Tuesday's hearing on offshore profit shifting and the United States tax code.
National Journal
Stacy Kaper
Nov. 5, 2013, 4:19 p.m.

With ef­forts in­tensi­fy­ing to bring the an­nu­al de­fense au­thor­iz­a­tion bill to the Sen­ate floor be­fore the Thanks­giv­ing re­cess, sen­at­ors are lin­ing up for battle on a num­ber of ex­plos­ive is­sues.

The Na­tion­al De­fense Au­thor­iz­a­tion Act is one of the few meas­ures that re­li­ably makes its way in­to law every year, now 51 times in a row and count­ing. So it is tar­geted as an in­creas­ingly at­tract­ive vehicle for law­makers to force de­bates on a num­ber of hot-but­ton na­tion­al se­cur­ity and de­fense-re­lated is­sues.

Na­tion­al Se­cur­ity Agency spy­ing, mil­it­ary sexu­al as­saults, Guantá­namo Bay de­tain­ees, and Ir­an sanc­tions are just some of the ma­jor fights that law­makers are push­ing to take up in the de­bate.

“We’ve got so many [amend­ments] to of­fer. We have got sexu­al as­saults, we have got NSA, we’ve got Guantá­namo — we have a lot of is­sues. This is what hap­pens when there is only one train leav­ing the sta­tion,” said Sen. John Mc­Cain, R-Ar­iz.

Ques­tions about Na­tion­al Se­cur­ity Agency spy­ing tac­tics have con­tin­ued to mount ever since former NSA con­tract­or Ed­ward Snowden made a splash earli­er this year with leaks about the NSA’s routine do­mest­ic sur­veil­lance of mil­lions of or­din­ary Amer­ic­ans’ phone and In­ter­net re­cords through the For­eign In­tel­li­gence Sur­veil­lance Court. Now, amid con­tin­ued rev­el­a­tions about NSA’s mon­it­or­ing the calls of friendly for­eign lead­ers, as well as the serv­ers of ma­jor In­ter­net cor­por­a­tions such as Google and Ya­hoo, re­form ad­voc­ates are bol­ster­ing their ar­gu­ments that the NSA is out of line and over­due for ser­i­ous re­forms.

“What I’m in­ter­ested in is do­ing everything I can to build a bi­par­tis­an co­ali­tion that makes it clear that the Con­gress is re­spond­ing to the mil­lions of Amer­ic­ans who are say­ing we re­fuse to give up our in­di­vidu­al liber­ties for the ap­pear­ance of se­cur­ity,” said Sen. Ron Wyden, D-Ore. “This is go­ing to be a long battle.”

Al­though many sen­at­ors and their aides ar­gue that a de­bate on the NSA seems all but in­ev­it­able, it is a di­vis­ive is­sue that does not fall neatly along party lines but pits es­tab­lish­ment lead­ers from both parties against civil liber­tari­ans on either polit­ic­al edge. Re­forms pro­posed by Sens. Wyden, Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, D-Vt., and Sens. Mark Ud­all, D-Colo., and Rand Paul, R-Ky., that would ban the NSA’s do­mest­ic bulk-data col­lec­tion would be sig­ni­fic­ant changes. Such re­forms are op­posed by a sol­id fac­tion of mem­bers who side with the ad­min­is­tra­tion and the in­tel­li­gence com­munity on this na­tion­al se­cur­ity ques­tion, such as In­tel­li­gence Com­mit­tee lead­ers Di­anne Fein­stein, D-Cal­if., and Saxby Cham­b­liss, R-Ga.

It is a fight that neither Sen­ate Armed Ser­vices Com­mit­tee Chair­man Carl Lev­in, D-Mich., nor In­tel­li­gence Com­mit­tee Vice Chair­man Cham­b­liss wants to have on the de­fense bill. And it is an is­sue that puts Sen­ate Ma­jor­ity Lead­er Harry Re­id, D-Nev. — who has largely de­fen­ded the status quo — in the awk­ward po­s­i­tion of not want­ing to pick sides between long-stand­ing com­mit­tee chiefs Fein­stein and Leahy.

A Sen­ate lead­er­ship aide said that the de­fense au­thor­iz­a­tion bill could come up as soon as the end of next week. But if that start date is pushed back and there is only one week for de­bate, it will be harder to in­cor­por­ate a de­bate on the NSA, too.

For his part, Lev­in is de­term­ined to pass the de­fense bill through the Sen­ate with as little drama as pos­sible.

“I would like to keep about everything I can off it, if we are go­ing to get a bill passed,” said Lev­in, adding that he would like to fend off sev­er­al con­tro­ver­sial meas­ures, es­pe­cially the NSA. “Be­cause NSA is a huge sub­ject in and of it­self, it de­serves prob­ably three days, or a week, and the Ju­di­ciary Com­mit­tee has not yet held its markup of its bill, so it is not yet ripe. As de­bated as it’s been in the pub­lic, it has not yet been re­solved here.”

On oth­er con­ten­tious mat­ters, Lev­in sup­ports the pres­id­ent’s goal of clos­ing the de­ten­tion fa­cil­ity at Guantá­namo Bay, and he in­cluded pro­vi­sions in the de­fense bill to ease trans­fers of de­tain­ees out of the fa­cil­ity. He did not al­low amend­ments on the is­sue in com­mit­tee, sav­ing the fight for the floor. Lev­in said he is bra­cing for ef­forts to scuttle his pro­vi­sion, par­tic­u­larly from those on the right. The House bill would al­low in­def­in­ite de­ten­tions at Gitmo to con­tin­ue.

“The Guantá­namo is­sue is go­ing to be a huge is­sue,” Lev­in said. “There is an ef­fort to strike that lan­guage.”

Lev­in is also bra­cing to try to fend off fur­ther Ir­an sanc­tions, which the ad­min­is­tra­tion op­poses as it at­tempts ne­go­ti­ations with Tehran on its nuc­le­ar am­bi­tions. The Bank­ing Com­mit­tee, which has jur­is­dic­tion, is work­ing on le­gis­la­tion, but if it doesn’t act fast, oth­ers are plan­ning to bring up the is­sue in the de­fense de­bate.

“If the Bank­ing Com­mit­tee doesn’t move, you can bet your life there will be an ef­fort to im­pose new sanc­tions on the de­fense au­thor­iz­a­tion bill,” said Sen. Lind­sey Gra­ham, R-S.C.

But by far, one of the most heav­ily an­ti­cip­ated battles cen­ters around the con­tin­ued prob­lem of mil­it­ary sexu­al as­saults.

The Armed Ser­vices Com­mit­tee bill in­cluded sev­er­al re­forms to ad­dress the scourge of un­wanted sexu­al con­tact in the armed ser­vices, which the De­fense De­part­ment es­tim­ated topped 26,000 cases last year. Still, only a little more than 3,000 cases were re­por­ted.

The big fight there will be over a bill from Sen. Kirsten Gil­librand, D-N.Y., that would take the de­cision to pro­sec­ute mil­it­ary sexu­al as­saults out of the chain of com­mand and rad­ic­ally re­form the mil­it­ary justice sys­tem.

Gil­librand plans to hold a press con­fer­ence Wed­nes­day to bring the is­sue back to the spot­light and gin up mo­mentum. She has 46 co­spon­sors, but get­ting even 50 or pos­sibly 60 votes would be an up­hill battle, fer­vently fought by the Pentagon and Armed Ser­vices Com­mit­tee lead­ers.

“They are fight­ing it,” said Sen. Bar­bara Box­er, D-Cal­if., who is cham­pi­on­ing the ef­fort with Gil­librand. “They fought “˜don’t ask, don’t tell.’ They fought a lot of things — but at the end of the day, we are the lead­ers, and you can­not sit back after 20 years of empty prom­ises and let things con­tin­ue.”

Box­er is also set­ting her sights on less con­tro­ver­sial meas­ures. She in­tro­duced a bi­par­tis­an and soon-to-be bicam­er­al bill Tues­day that en­joys broad sup­port from Armed Ser­vices Com­mit­tee mem­bers. It seeks to im­prove pre­tri­al in­vest­ig­a­tion tac­tics to en­sure that sur­viv­ors of as­saults are not forced to un­der­go bruis­ing 30-hour in­ter­rog­a­tions, such as what happened to an al­leged vic­tim in the re­cent Nav­al Academy sexu­al-ab­use scan­dal.

Lev­in has said he’s still scrub­bing the bill, but he gen­er­ally sup­ports it.

“I’m very much of fa­vor of re­form­ing,” he said. “It looks very good to me, but I want to wait for the re­sponse of ex­perts on the sub­ject.”

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