The bill passed included a compromise by Senator Feinstein,
roll call.
(e) Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
Still, there is a call for more explicit language along the lines of the amendments offered by Udall and Feinstein that failed to pass. The ACLU isn't satisfied with the compromise language and wants the original provision removed.
Behind Closed Doors: Congress Trying to Force Indefinite Detention Bill on Americans (ACLU)
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What happens next? First, there will be a more formal House-Senate conference in the next few days to put an official stamp of approval on what the Big Four wrote in secret. And then the bills will be on the floors of the House and Senate by early next week.
Their plan is to move very, very fast. Congress certainly has earned a reputation for being slow, but the plan for the
NDAA is to jam it through the House and Senate with as little debate as possible.
But you can help stop them.
Amazingly, as soon as a week from today, a final bill could be passed by Congress and headed to President Obama's desk. His White House has repeatedly threatened
to veto the NDAA if these dangerous provisions stay in the bill.
But should it really come to that? Congress itself should come to its senses and ditch the indefinite detention provisions. And just as importantly, Congress should listen to you and every other American on what we all as Americans want for our country. Secret deals for indefinite military detention without charge or trial?
Tell Congress we are better than that. It's not who we are as Americans, and it is not the country or the world we want to pass on to our children and grandchildren.
When the President vetos the bill, it goes back to Congress, will they have enough votes to override his veto?
STATEMENT OF ADMINISTRATION POLICY: S. 1867 – National Defense Authorization Act for FY 2012 (PDF)
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Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.
Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.
The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests. The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role. These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations. Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people.
Rather than fix the fundamental defects of section 1032 or remove it entirely, as the Administration and the chairs of several congressional committees with jurisdiction over these matters have advocated, the revised text merely directs the President to develop procedures to ensure the myriad problems that would result from such a requirement do not come to fruition. Requiring the President to devise such procedures concedes the substantial risks created by mandating military custody, without providing an adequate solution. As a result, it is likely that implementing such procedures would inject significant confusion into counterterrorism operations.
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Here's a full explanation of the provisions and where the bill stands.
Lays out Concerns in Letter to Armed Services Chairman; As Member of Conference Committee, Udall Fighting to Preserve National Security, Protect Constitutional RightsPosted: Friday, December 9, 2011
As a member of the conference committee reconciling House- and Senate-passed versions of the critical National Defense Authorization Act, Mark Udall is continuing his fight against provisions in the bill that would weaken national security and constitutional protections for U.S. citizens. He laid out his concerns about the detention provisions in a letter to Senate Armed Services Committee Chairman Carl Levin, urging him to continue working over the weekend on a solution that would prevent the White House from making good on its threat to veto the overall bill.
The Secretary of Defense, Director of National Intelligence, and the directors of the FBI and CIA all have expressed concern that the provisions - intended to clarify our policy on detaining accused terrorists - would actually disrupt ongoing law enforcement investigations of terrorists and hinder cooperation between law enforcement and the military. National security and civil liberties experts have also raised serious concerns that the provisions would permit the military to detain American citizens without trial, a serious erosion of the Constitution.
"Although I have no doubt that the provisions were drafted with the best of intentions, I remain deeply concerned about the potential for unintended consequences that could impede our ability to track, investigate, capture, and exploit terrorism suspects," Udall wrote to Levin. "Therefore, I respectfully ask that you seek to address the following points during the conference negotiations and modify the language of the provisions as needed to protect national security and the constitutional liberties of American citizens."
To read more about Udall's work to reach a workable resolution on the detainee provisions, and to prevent a presidential veto on the defense bill, click
HERE and
HERE.
Text of the letter to Levin follows:Dear Chairman Levin:
As the House and Senate Armed Services Committees meet to negotiate the final Fiscal Year 2012 National Defense Authorization Act in conference, I urge you to give careful consideration to a number of issues related to the detention provisions contained in the Senate bill that I believe could have significant and damaging impacts on our national security and simultaneously Americans' constitutional freedoms. Although I have no doubt that the provisions were drafted with the best of intentions, I remain deeply concerned about the potential for unintended consequences that could impede our ability to track, investigate, capture, and exploit terrorism suspects. Therefore, I respectfully ask that you seek to address the following points during the conference negotiations and modify the language of the provisions as needed to protect national security and the constitutional liberties of American citizens.
Authorization for indefinite military detention (Section 1031):Section 1031 contains a number of provisions that have generated significant criticism from the Department of Defense, the Intelligence Community, federal, state, and local law enforcement officials, and civil rights organizations. By authorizing the military to conduct operations that have been within the exclusive purview of civilian law enforcement for over 140 years, this section has the potential to create unnecessary challenges and liabilities for the Department of Defense and other agencies.
Although it has been argued that Section 1031 does not change existing law or practices, such assertions are widely disputed by a range of policy experts, as well as senior national security and law enforcement officials. By expanding the Authorization for Use of Military Force (Public Law 107-40), this provision effectively declares the United States a part of the battlefield. That expansion, in turn, raises a number of unanswered questions that create a significant likelihood for uncertainty and confusion in the national security community. Given that the Executive Branch already has the flexibility and resources necessary to prosecute the war against extremists, this provision could be counterproductive and ultimately harm our national security.
Section 1031 also could be interpreted as permitting the indefinite detention - without trial - of American citizens arrested in the United States. Such actions would conflict with statutory and Constitutional protections and invite legal challenges that could threaten the prosecution of suspected terrorists. Throughout American history, the government has taken actions that have infringed on civil liberties in an effort to protect the United States from attacks; the hindsight of history has proven many of those actions-such as the internment of Japanese-Americans-to be ineffective and ultimately out of step with American values. Al Qaeda and other terrorist organizations may endeavor to attack our citizens and infrastructure, but despite their best efforts, they do not have the capability to weaken our principles or limit our freedoms. Congress should endeavor to stand firm in defending that which our enemies seek to destroy rather than enacting legislation that weakens Constitutional protections and limits the ability of our government to use all of the tools at their disposal to fight and defeat our enemies.
Requirement for military detention (Section 1032):The requirement in Section 1032 of the Senate NDAA to detain certain members of "al Qaeda, the Taliban, or associated forces" in military custody could present numerous unforeseen technical, logistical, and legal challenges for various national security agencies as they work to prevent terrorist attacks. The lessons learned following the events of September 11th, 2001 made it clear that law enforcement agencies, the intelligence community, and the Department of Defense (DOD) were insulated from one another and lacked the ability to effectively share intelligence and collaborate. Over the course of the last decade, interagency cooperation and collaboration has improved markedly, and as a result, has made it possible to prevent further terrorist attacks. By requiring an inflexible course of action that runs contrary to the advice of our counterterrorism professionals, this provision could significantly impede the efforts of our law enforcement, intelligence agencies, and the Department of Defense as they seek to make split-second decisions and keep us safe.
I understand that the national security waiver in Section 1032 is intended to provide the executive branch with the authority to override the requirement for military detention in certain circumstances; however, I believe this only adds an unnecessary and time-consuming bureaucratic process that could lead to costly delays in decision making and execution of necessary actions. The efforts required to combat persistent and unpredictable terrorist threats are simply incompatible with requiring multiple senior Administration officials to certify a national security imperative in order to preserve the current flexibility they effectively enjoy today.
Finally, there are a number of questions raised in Section 1032 that remain unanswered. For example, given the unconventional nature of our enemies, it is unclear what constitutes membership in al Qaeda, what forces are considered to be associated with al Qaeda, what defines a "coalition partner," or how it can be determined that an individual is a member of such group or has committed a belligerent act-especially within the United States- without trial. At the very least, the lack of clear due process requirements raises serious questions. It is also unclear how the requirements in Section 1032 would affect the transfer of enemy belligerents currently held at detention facilities other than Guantanamo.
More broadly, it is unclear how enacting the provisions in Section 1032 will benefit U.S. national security. Subsection (a) of Section 1031 affirms that "the authority of the President to use all necessary and appropriate force...includes authority for the Armed Forces of the United States to detain" certain covered persons. In light of the stated intent of the provisions to provide the President with the authority necessary to effectively prosecute actions against al Qaeda and other unspecified terrorist organizations, it seems counterintuitive that the Congress should subsequently mandate actions like those in Section 1032 that effectively tie the hands of the Administration and the national security community.
I have enclosed suggested legislative language that I believe may help to resolve some of the concerns and ambiguity associated with Section 1032. I respectfully ask that you consider this language during your deliberations with conferees.
Sincerely,
Mark Udall
Notice Udall's emphasis on "could be interpreted." That's the problem.
The Udall amendment and Feinstein's first amendment would have erased the ambiguity. The fact is that the existing law is being misinterpreted by some.
NYT<...>
But Senator Mike Lee, Republican of Utah, said citizen terrorism suspects should retain their “fundamental civil liberties” in order to protect the founding principles of the United States.
“I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them,” he said.
Before voting to leave current law unchanged, the Senate rejected, 55 to 45, a proposal by Senator Dianne Feinstein, Democrat of California, to instead say that Americans are exempt from detention under the 2001 authorization to use military force.
The uncertainty over the current law added confusion. Some, like Mr. Graham and Mr. Levin, insisted that the Supreme Court had already approved holding Americans as enemy combatants, even people arrested inside the United States. Others, like Senators Feinstein and Richard J. Durbin, Democrat of Illinois, insisted that it had not done so.
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The Constitution is clear, and the only reason these amendments are even needed is because of the insistence of some Senators to interpret the law in broader terms when they have no justification, legal or otherwise, to strip Americans of their “fundamental civil liberties.”
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