2 votes

My Senator's response on why he supports the NDAA: Why/Where is he wrong?

Thanks for taking the time to contact me with your concerns about parts of a law known as the National Defense Authorization Act for Fiscal Year 2012. I appreciate hearing from you.

The National Defense Authorization Act (NDAA) is an annual piece of legislation that authorizes expenditures for the Department of Defense. The legislation is over 1,000 pages long and includes funding for military programs and projects, including the annual salaries for soldiers, marines, airmen, and sailors. Additionally, the bill usually includes a number of different military policy pronouncements dealing with the conflict in Afghanistan and other operations around the globe.

Your letter expressed concerns with provisions in the NDAA for Fiscal Year 2012 related to the detention of individuals who perpetrated the 9/11 terrorist attacks. These provisions, found in Subtitle D of the bill titled, "Counterterrorism," codify a number of existing policies and legal authorities that are the result of Presidential Executive Orders, previous laws passed by Congress, and decisions issued by the Supreme Court of the United States.

There have been a number of misconceptions about these provisions, especially their applicability to U.S. citizens. These provisions do not authorize the President to unilaterally detain U.S. citizens in military custody, they do not authorize or require the detention of any U.S. citizen at Guantanamo Bay, Cuba, and they do not erode any protections for U.S. citizens under the Constitution or the Bill of Rights.

Much of the debate has surrounded Section 1021 of the NDAA, which is titled "Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force." This section does nothing more than reaffirm the current legal authority to detain al Qaeda and Taliban fighters under the 2001 Authorization for Use of Military Force (AUMF) against those who perpetrated the 9/11 attacks. This includes reaffirming the President's authority to detain a person "who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for the attacks." It also includes "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States." Section 1021 also reaffirmed that this authorization allows the President to detain such a person for the duration of the conflict "pending the disposition under the law of war." The avenues for a "disposition" under the 2001 AUMF include detention until the end of hostilities, trial by military commission, trial by an alternative court or competent tribunal having jurisdiction, and transfer to the custody or control of the person's country of origin.

Congress passed the AUMF in 2001 and the Supreme Court in Hamdi v. Rumsfeld upheld detention of al-Qaeda and Taliban fighters and their supporters under the AUMF as "fundamental and accepted [as] an incident to war." Further, the Court held in Hamdi that detention authorized under the AUMF is "for the duration of the particular conflict in which they were captured" and is for the purpose of removing and preventing such a person "from returning to the field of battle and taking up arms once again." Thus, the detention authority authorized in Section 1021 merely reaffirms the authority already granted by Congress as part of the 2001 AUMF and recognized as constitutional by the Supreme Court in Hamdi. All of this follows the traditional laws of war.

Section 1022 of the NDAA has also raised concerns and has also been the subject of misrepresentations of the impact it has on U.S. citizens. Section 1022 is titled, "Military custody for foreign al-Qaeda terrorists." This section requires that the President detain any person covered by Section 1021-those affiliated with or supporting al-Qaeda...etc.-in military custody pending disposition under the law of war as outlined in Section 1021-that is, detention for the duration of hostilities, a trial by military commission, trial by an alternative court, or transfer to the custody or control of the person's country of origin. One major misconception has been that this provision would authorize and require the President to detain in military custody any U.S. citizen arrested for conspiring with al-Qaeda. By the express terms of Section 1022, U.S. citizens are excluded from the mandatory military custody provision.

While the express provisions in the NDAA clearly exclude U.S. citizens from any military detention requirement, there continues to be a number of misconceptions about what impact these provisions will have on U.S. citizens who are arrested for working with, on behalf of, or in substantial support of al-Qaeda terrorists. Simply put, the provisions do not impact the President's authority under the law to detain U.S. citizens who engage in terrorist activity at home or abroad. This legal framework includes U.S. criminal laws and existing detention authority under the law of war as outlined by the Supreme Court.

More specifically, the NDAA does not amend the current Supreme Court precedent, first established in 1942, that during times of military conflict, the President has the authority to detain those who take up arms against the United States and try them via military commission instead of traditional criminal courts. In 1942, the Supreme Court, in Ex Parte Quirin, upheld President Roosevelt's authority to detain an American citizen who was captured along with a number of German Nazi saboteurs. These individuals were sent to the United States to attack both military and civilian targets. They were captured and arrested and then tried by military commission. The Supreme Court heard an appeal of their conviction and held that the President was acting within the scope of his duties as Commander in Chief and that the detention and trial did not violate Quirin's constitutional rights. The Supreme Court also recently upheld the ruling in Ex Parte Quirin in the case called Hamdi v. Rumsfeld, which was decided in 2004. In Hamdi, the Court held that a U.S. citizen who was captured and arrested on a foreign battlefield, in this case Afghanistan, could be detained in military custody and tried via a military commission under the AUMF provided that there was sufficient opportunity to challenge the detention. Finally, the Supreme Court has held in another recent case, Boumediene v. Bush, that individuals detained under the AUMF, including U.S. citizens, have the right to challenge their detention in federal court. While the NDAA expressly exempts U.S. citizens from the detention provisions, it is important to note that this Supreme Court precedent exists regardless of what Congress included in the NDAA. To be clear, a U.S. citizen always has the right to appeal to a federal judge to review his detention, and the NDAA does not change that.

In voting to support the NDAA for Fiscal Year 2012, I recognized the important need to fund the military and support the soldiers, airman, sailors, and marines that defend our Nation. I understand the concerns that were expressed with early drafts of the NDAA that included U.S. citizens in the reaffirmation of military detention under the AUMF. Ultimately, the final conference report of the NDAA I voted for expressly exempts U.S. citizens from the detention regime. Ensuring that those who take up arms against the United States are detained in a lawful manner is an important part of providing for the national defense as outlined in the Constitution. That job must ensure the security of our citizens from terrorists while balancing civil liberties of those who are American citizens. I take this job seriously and believe that the final version of the NDAA strikes the careful balance between protecting the civil liberties of American citizens while ensuring we remove dangerous terrorists from society under a lawful detention authority.

In closing, I appreciate hearing your concerns; they are an important part of the two-way communication necessary for Congress to function. Thank you.



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