By Daniel Jacobson —
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