Rep. Steve King says FY13 NDAA contains the language of the Right to Habeas Corpus ActSubmitted by Realdeal on Mon, 11/19/2012 - 15:49
Congressman Steve King, IA, just now replied to my letter in regard to the indefinite detention clauses in NDAA. He states that the indefinite detention clauses do not apply to American citizens. Bold emphasis is mine. Here is his response:
November 19, 2012
Thank you for contacting me with your concerns about H.R. 4130, the National Defense Authorization Act for Fiscal Year 2013 (NDAA). It is good to hear from you.
As you may know, the NDAA is annual legislation that authorizes expenditures for the DOD. The bill is over 1,000 pages long and includes funding for military programs and projects, including the annual salaries for military personnel. This year's NDAA contained language that stopped the National Guard from retiring the F-16 squadron in Des Moines and a KC-135 tanker in Sioux City. Last year's FY2012 NDAA codified a number of existing policies and legal authorities relating the capture and trial of terrorists that are the result of Presidential Executive Orders, previous laws passed by Congress, and decisions issued by the Supreme Court of the United States, raising concern among some who believed that this would lead to indefinite detention of American citizens. There have been a number of misconceptions about these provisions, especially their applicability to U.S. citizens.
FY13 NDAA 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." 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.
If the AUMF were not in place, and a terrorist like al-Qaeda leader Ayman al-Zawahiri was captured overseas (say, in Pakistan), he could be detained by the military, interrogated, and dispatched to wherever the Commander in Chief decides. But if he happened to make it to the U.S., he would have to be handled like your neighborhood burglar. That means he would be read Miranda rights, handed over to the local police and put before a civilian judge. The military or CIA couldn't question him to learn about future plots. This would have a significant negative impact on our military and intelligence community's ability to keep us safe and prevent further attacks.
Notably, FY13 NDAA contains the language of the Right to Habeas Corpus Act, and makes clear beyond a shadow of a doubt that every American will have his day in court. Further, the Supreme Court, in Boumediene v. Bush, has held 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. 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.
Thank you once again for contacting me. Please do not hesitate to do so again in the future.
Member of Congress