Featured — November 10, 2010 at 1:02 am

Potential National Security Ramifications of the New U.S. Congress

By Daniel Jacobson –

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As the public digests the results of last week’s midterm elections, many commentators have begun discussing how the makeup of the new Congress will affect various legislative areas, including national security.  Benjamin Wittes at Lawfare (and NSJ advisory-board member) suggests that the election’s impact on substantive national security issues will likely be “minimal,” noting that the 111th Congress acted much in the same way that a Republican-controlled Congress could have been expected to act. While Wittes certainly has a fair point concerning the high level of continuity on national security policies regardless of the party in power in Congress, there are several issues on which a more heavily Republican influenced Congress could make a meaningful difference.


Last year, both the House and Senate Judiciary Committees reported bills that would re-authorize, with significant changes, three expiring provisions of the PATRIOT Act: Section 215 (the so-called “library records” provision), Section 206 (involving “roving wiretaps”), and Section 207 (the so-called “lone-wolf” provision). In addition, both bills would have limited the circumstances under which the FBI can obtain personal information through National Security Letters (NSLs).  Notably, the House Judiciary’s bill went further than the Senate bill in most respects in adding heightened privacy protections to these statutory provisions.  Despite the passage through both committees, neither chamber acted on its bill, and with the sunset date for the PATRIOT Act provisions approaching, Congress extended the provisions for one year without change. While the Democrats may have signed this extension with the thought that they would take up their desired changes after the pressure of the midterm elections (note that the one-year sunset date differed from the three-year sunset period that would have gone into effect had the bills passed), most of the proposed changes seem unlikely now with a Republican-controlled House. For many civil liberties advocates, this is no small matter, particularly with regard to the use of NSLs and the library-records provision.

Don’t Ask, Don’t Tell

The push to repeal the “don’t ask, don’t tell” policy gained significant traction in Congress over the last year, passing the House and having come just three votes short in the Senate.  However, this momentum is likely to hit a road-block if the Senate is unable to pass repeal in the lame-duck session, as it is difficult to imagine the Republican-dominated House passing repeal next term. The best chance for (legislative) repeal would therefore seem to be if the Democrats can pick off a few Senate Republicans very shortly after the release of the Pentagon review due out December 1, but proponents of repeal such as Robert Gates appear to be pessimistic about such a scenario.  Repeal advocates may thus have to pin their hopes on the courts stepping in and deeming the policy unconstitutional if they are to see the policy dismantled in the near future.


As Wittes points out, Congress often produces more noise than substance when it comes to national security policymaking, and the upcoming decisions concerning Afghanistan could very well be an area in which that noise is substantial. With American forces scheduled to being withdrawing from Afghanistan in July 2011, Congress will clearly have a role to play in shaping public debate should the President actually follow through with this plan.  Although Congress would likely be unable or unwilling to prevent the President from embarking on a withdrawal strategy, Speaker Boehner could use his pulpit to make withdrawal not only a daunting policy matter for the President, but also a political headache, as the label of “soft on national security” is not one that the President would want hanging over him heading into his re-election campaign.

To be determined…

Thomas Friedman points out in his November 6 column that the United States narrowly avoided at least five significant terrorist attacks on the homeland within the last year. Should our luck run out and a domestic attack on civilians be successful, congressional legislation in response to such an attack is almost certain. While a response would likely come regardless of which party controlled Congress, that response could be broader and more sweeping with Republicans in control of the House and having increased seats in the Senate.  This response could deal with surveillance, detention, immigration, cybersecurity, or numerous other areas of national security law – all depending on the nature of the attack and any homeland security shortfalls that contributed to its success.  Thus, the largest national security impact of last week’s election could concern a controversy about which we are not yet even aware.

Image courtesy of Foreign Policy


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  2. Great piece, as usual. One thing that I didn’t see addressed, however, is the possibility of severe budget cuts and how those might affect programs related to national security. With Republicans (in the House, mainly) saying that they intend to take the new Tea Party Caucus seriously in its efforts to slash the federal deficit, then I think it’s a possibility that should not be ignored.

  3. During the campaign, the standard line I saw from Republicans, Tea Party and non-Tea Party alike, was that they were going to tackle the deficit by slashing “non-defense discretionary spending” (i.e. defunding the National Endowment for the Arts will solve our country’s long-term deficit issues). The one candidate who I can remember being open to defense cuts was Rand Paul, but I think it’s going to take more than one ophthalmologist who’s hated by the Senate Minority Leader to get this done.

  4. Aren’t a lot of the people in the Tea Party much more supportive of a hasty withdraw from Afghanistan than Boehner or others in the Republican leadership? Ron and Rand Paul seem to be at least. Will this be a source of friction at all?

  5. I’ve heard more or less the same thing, but I’m curious if the Republicans will nevertheless be pushed by their base in the direction of more aggressive cuts. Probably not. But it’s a bit ironic that the Defense Department has been the force pushing for cuts, while Congress resists. I’m not sure how tenable this situation is in the long run.

  6. An enjoyable read – and I’m also curious to see how the Boehner-Obama relationship impacts Afghanistan policy. If public mood is either favorable or neutral, I expect the White House to still push toward gradual withdrawal. That being said, it seems as if the Obama Administration is now trying to stretch out that timeline: http://seattletimes.nwsource.com/html/nationworld/2013389298_afghanplan10.html.

    • Sean, it seemed to me like the Administration had always been a bit squirrely when it came to the question of whether it would really begin to drawn down troop numbers; that is, it always seemed to depend on “conditions on the ground.” With a Republican-controlled House and the need to not look weak on terrorism, I’d be pretty surprised if we saw anything substantial by July 2011. In fact, I wouldn’t be shocked by an expansion in the number of forces.

    • I do think there is an interesting question of what the Republicans would do if the war remained unpopular and Obama wanted to start withdrawal. When Bush went forward with the surge, I think the majority of the public was against it, but the Congressional Republicans still supported the Administration’s decision.

      I suppose this with Afghanistan could be different because with the surge it was a Republican Administration pushing the policy and the Congressional Republicans may have had no choice but to support that choice (Bush was after all the leader of the party), but I do think there is an ideological commitment that is pretty strong and should not be discounted.

  7. Actually, it seems that the Administration and Congress might be willing to make some moves on the budgetary front: http://www.wired.com/dangerroom/2010/11/deficit-plan-scraps-pentagon-jets-tanks-trucks/?utm_source=co2hog. It’s not binding, of course, but it’s a starting point. Any budget cuts, however, raise the specter of the United States falling behind to a certain rising power in East Asia.

  8. We also shouldn’t forget about other pressing counter-terrorism issues – like what to do with the Gitmo detainees – that could rise to the fore depending on how Obama wants to tread with the Republicans in Congress. Interesting Politico article addressing this: http://www.politico.com/news/stories/1110/44908.html

  9. We also shouldn’t forget about other pressing counter-terrorism issues – like what to do with the Gitmo detainees – that could rise to the fore depending on how Obama wants to tread with the Republicans in Congress. Interesting Politico article addressing this: http://www.politico.com/news/stories/1110/44908.html

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