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The Absurdity of the National Security State

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As lawmakers fall all over each other to prove who's toughest on terrorism, critics from across the political spectrum are finally starting to decry the absurd results.

On his lawfareblog, conservative Brookings Institution fellow Benjamin Wittes (with whom I often disagree) lays out the absurdity of the scenario that the Senate has just created in its version of the defense spending bill. While the House bill is in some ways worse, the Senate bill (which ominously fills 666 pages) could actually have the ridiculous -- and dangerous -- outcome of disrupting ongoing terrorism investigations purely to make an ideological point.

As Wittes explains, Section 1032 of the Senate bill, titled "Required military custody for members of Al-Qaeda and Affiliated Entities," would require the U.S. government to place anyone believed to be a member of one of these terrorist organizations in immediate military custody. That could mean that if the FBI has arrested an al Qaeda member and is interrogating him and receiving valuable information, it would have to immediately stop the interrogation and hand him over to the U.S. military. Even worse, the bill could require the FBI to stop investigating suspected al Qaeda members so that they can be placed in U.S. military custody, even if the FBI's surveillance is leading to critical intelligence about an al Qaeda cell plotting a terrorist attack.

Sure, that would be completely counterproductive to the fight against terrorism, but calling in the U.S. military every time we've got a suspected terrorist in our sights would sure make Congress look tough, wouldn't it?

Only to an audience that doesn't know the facts. As the New York Times pointed out over the weekend, both the House and Senate spending bills reach beyond anything that even George W. Bush proposed during his tenure. And while I am reluctant to hold up that administration as a model of good counterterrorism policy, it did know how to use the federal courts for its purposes. The Bush administration won the convictions of hundreds of people suspected of supporting terrorism in even the most minor ways after the September 11 attacks. Only a small handful of suspected terrorists were ever sent to military courts, and most of those have long since been released from prison.

Now Congress has decided that tactic wasn't good enough. Instead of letting seasoned FBI investigators root out terrorists and their sympathizers wherever they find them, often after months or even years of painstaking investigation, lawmakers want to throw them all in military prisons where they can rot indefinitely.

Viewed alongside provisions in the House bill that prevent transfer of any Guantanamo prisoners to the U.S. for trial, this looks like yet another attempt to embarrass the Obama administration by making it impossible for the president to fulfill his promise of closing the Guantanamo Bay military prison and returning the United States to its stature as a country that abides by the rule of law -- including its own Constitution.

Democrats say they went along with this only because they feared their colleagues would otherwise pass something far worse. And the Obama administration, although threatening to veto the House bill, has so far remained silent on the Senate version. Meanwhile, Congressional Republicans keep trying to out-do one another in proving their commitment to a military security state.

Abandoning common sense, let alone national security, in an effort to prove one's strength and virility is a cynical move that sacrifices the public good for personal political power. It also threatens to backfire: What happens when the public learns that terrorism investigations have been interrupted and prosecutions botched due to lawmakers' public posturing?

Ultimately, that sort of empty exhibitionism will come back to haunt even the toughest of them. Just ask Anthony Weiner.