Detention: Law of: Legislative Development

Adam Smith's "Dear Colleague" Letter on the NDAA's Detention Provisions

By Raffaela Wakeman
Wednesday, December 14, 2011, 12:15 PM

Here is a letter  from Congressman Adam Smith (D-WA), the ranking member of the House Armed Services Committee, defending and clarifying the detention provisions in the NDAA  and advocating for its passage.

Dear Colleague:

One of the most important issues in the Fiscal Year 2012 National Defense Authorization Act (NDAA) involves detainee issues. I would like to take a moment to explain my position.

First, the AUMF (Authorization for Use of Military Force) section in our bill, Section 1021, merely codifies current law. It specifically states, “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.”  Quite simply, our courts will decide what the law is regarding detention of U.S. citizens.

Second, any U.S. citizen detained under Section 1021 has the right under habeas corpus to have the legality of any such detention determined by our courts.  The courts have also held that anyone detained under the AUMF at Guantanamo Bay, Cuba, also has habeas rights.  We do not change these rights.

Third, Section 1022, entitled, “Military Custody For Foreign al-Qaeda Terrorists” specifically excludes US citizens. It states, “the requirement to detain a person in military custody under this section does not extend to citizens of the United States.” It also states the requirement to detain under Section 1022 “does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”

Fourth, we also codify periodic review for those being detained at Guantanamo Bay, now and in the future, which is an important procedure for those detained indefinitely as a threat to the United States under the law of war.

Finally, I understand and respect the opinions of our colleagues who do not like the current law on this subject. I fought hard in conference to make sure that this bill did nothing to expand federal authority under the AUMF and succeeded in that effort.  We need to protect our country but also preserve our values and due process rights in doing so.

This bill needs to be passed. We need to make sure that our troops have the support they to protect our country and ensure national security.


Adam Smith

Ranking Member

House Armed Services Committee