Senate Debate on the NDAA Conference Report

By Raffaela Wakeman
Monday, December 19, 2011, 11:03 AM

In our final installment of NDAA transcripts, we bring you the Senate's debate on December 15th on the conference report's detention provisions.

Here are some highlights:

Senators Carl Levin and John McCain tout the strengths of the detention provisions starting on pages 1 and 3, respectively. Senator McCain acknowledges the collaboration the conference committee had with the FBI in revising the provisions on page 5:

The military custody provision in the final compromise authorizes the transfer of any detainee to civilian custody for trial in civilian court and leaves it up to the President to establish procedures for determining how and when persons determined to be subject to military custody would be transferred. The provision adopted in the conference report requires that such determination must not interfere with ongoing intelligence, surveillance, or interrogation operations.

All of this flexibility was added to the bill even before we began negotiations with the White House to make it clear that the intent of the Senate's provisions was not to tie the administration's hands but to give them additional means to defeat the most serious type of threat from al-Qaida to our country. The result of these Senate modifications to the original form of the provisions ensures that the executive branch has complete flexibility in how it first determines and then how it applies military custody for al-Qaida members who are captured after having attacked the United States or while planning or attempting such an attack.

Moreover, after meeting with FBI Director Robert Mueller, the Senate conferees added language in conference in response to his concerns about the impact on FBI operations confirming that nothing in this provision may be "construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation, or any other domestic law enforcement agency, with regard to a covered person, regardless whether such covered person is held in military custody.''

It is the intent of the Senate conferees, in agreement with House colleagues on a bipartisan basis, that the FBI continue to execute the full range of its investigative and counterterrorism responsibilities and that any shift to military custody will be an administrative measure that does not limit in any way the FBI's authority.

I acknowledge that these issues were very controversial with some Members. These provisions were debated extensively--as thoroughly as any matter I have seen in recent memory--but I believe we have addressed in a positive way and have been responsive to concerns raised by the administration. Indeed, the Senate made changes both on the floor and during conference to ensure that the intent of the provisions was fully understood by the administration and others even before negotiations over the final form of the text began.

In many ways, as Chairman Levin has pointed out in many of his public statements and speeches on these detainee provisions, rarely has such misinformation, speculation, and outright misrepresentation been greater over what a bill actually does compared to what some from the left and right claim it does than has been the case with these detainee provisions. Whether 2012 campaign politics played a role in the characterization of these provisions or whether this was simply a case of not fully understanding the intent of the authors of these provisions I will leave to others to decide.

I point out again that I think my friend from Michigan Senator Levin displayed a great deal of courage in formulating what he thought was best for our Nation's security.

Regardless of the motivation that may have colored the debate until now, I believe that, by any responsible reading, these provisions will not impair the flexibility of the President or national security officials in protecting the United States and its citizens. The military custody provision, which has been the focus of much of this debate, provides flexibility to use either a civilian track or a military track for custody and eventual trial and leaves the details of implementation in the hands of the executive branch, as it is appropriate to do so. It preserves the current state of the law as it applies to the rights of U.S. citizens and lawful resident aliens.

In terms of FBI authority to conduct investigations and interrogations, as well as use other instruments of the investigative and criminal process, these provisions preserve all of the FBI's role and authority under existing law.

Retiring Senator Jeff Bingaman from New Mexico also spoke on the floor about the detention provisions, specifically the president's power to waive the mandate to detain suspected terrorists (which Bobby wrote about here). He said:

Another problematic provision is section 1022, which mandates that the military detain suspected members of al-Qaida, including those captured within the United States. As I previously mentioned, military and Federal law enforcement officials have argued that this provision will hamper their ability to bring suspected terrorists to justice by limiting the flexibility of civilian law enforcement and creating a completely new and untested framework for dealing with suspected terrorists.

Proponents of this provision have argued that this section will not interfere with the ability of civilian law enforcement to do their job. They point to the fact that the President may waive the requirement and that the President must draft procedures within 60 days to mitigate any problems associated with implementing this section.

First, with regard to the waiver, if civilian law enforcement agents capture a suspected terrorist, the need to obtain a Presidential waiver for continued civilian detention could disrupt interrogations and intelligence gathering. Second, if there is an acknowledgement that the statute could interfere with Federal law enforcement's ability to interrogate and prosecute a suspected terrorist, it would seem more appropriate to just address the underlying problems with the statute rather than task the administration with coming up with procedures to deal with these shortfalls.

Just yesterday, the Director of the FBI, Robert Mueller, in testimony before the Senate Judiciary Committee, stated that the revised language did not fully address his concerns about the negative impact the military detention provision would have in interfering with the work of investigators.

The bottom line is that this section muddies the water and is completely unnecessary. The administration already has the discretion to prosecute foreign terrorists in civilian court or in military tribunals. We should maintain this flexibility to ensure the government is able to aggressively pursue terrorists in the forum that is the most effective in each specific case.

Senator Dianne Feinstein discusses her new bill, The Due Process Guarantee Act of 2011, which Steve earlier analyzed here, beginning on page 27:

Mr. President, I thank the Senator from Illinois for his very eloquent remarks; also, the Senator from Colorado, Mr. Udall, whom I had the pleasure of hearing from my office. I think they have encapsulated the situation we find ourselves in very well.

Mr. President, I wish to follow up on the detention authorities in the Defense Authorization bill and announce that today I am introducing legislation to clearly state that citizens apprehended in the United States shall not be indefinitely detained by the military.

This new legislation is called the Due Process Guarantee Act of 2011. I am joined by Senator Leahy, the chairman of the Judiciary Committee, to which this bill will go, Senator Lee, a member of that committee, Senator Kirk, Senator Mark Udall, Senator Paul, Senator Coons, and Senator Gillibrand. I thank them for being original cosponsors of this bipartisan legislation.

In sum, the Due Process Guarantee Act we are introducing will add to another major law called the Non-Detention Act of 1971, which clearly stated:

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.

The new legislation we intend to introduce will amend this Non-Detention Act to provide clearly that no military authorization authorizes the indefinite detention without charge or trial of U.S. citizens who are apprehended domestically. It also codifies a "clear statement rule'' that requires Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents for all military authorizations and similar authorities.

We cannot limit the actions of future Congresses, but we can provide that if they intend to limit the fundamental rights of U.S. citizens, they must say so clearly and explicitly.

. . .

Lawful permanent residents are included in this bill we will introduce because they have the same due process protections as citizens under the Constitution. In this bill, the protections for citizens and lawful permanent residents is limited to those "apprehended in the United States,'' excluding citizens who take up arms against the United States on a foreign battlefield.

I strongly believe constitutional due process requires that U.S. citizens apprehended in the United States should never be held in indefinite detention. That is what this legislation would accomplish, so I look forward to working with my colleagues, especially Chairman Leahy on the Judiciary Committee, to move this bill forward.

. . .

Our current approach to handling these suspects in Federal criminal courts has produced a strong record of success since the 9/11 attacks. We would be wise to follow the saying, "If it ain't broke, don't fix it.''

Our system is not broken. We thwarted attempted terrorist acts. We have captured terrorists, interrogated them, retrieved actionable intelligence from them, prosecuted them, and locked them up for lengthy sentences--in most cases for the rest of their lives.

Both Senator Udall and Senator Durbin pointed out Director Mueller's testimony before the Judiciary Committee yesterday. This is relevant because it had been said that the Director of the FBI was satisfied with the language of the conference report of the Defense authorization bill. When Director Mueller was asked the question yesterday, Are you satisfied with the language, in so many words, he said, not quite. To quote him, Director Mueller said:

Given the statute the way it is now, it doesn't give me a clear path to certainty as to what is going to happen when arrests are made in a particular case.

He warned:

The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.

I am concerned about how these provisions will be implemented once they are enacted into law, so I will be watching carefully to ensure that they do not jeopardize our national security.

Finally, I want to explain, as the sponsor of the Feinstein compromise amendment, No. 1456, that the Defense authorization bill should not be read to authorize indefinite detention of U.S. citizens captured inside the United States or abroad, lawful resident aliens of the United States captured inside our country or abroad, or any other persons who are captured or arrested in the United States.

On page 655 of the conference report, the compromise amendment, No. 1456, that passed the Senate by a vote of 99 to 1, reads this way, and this is in the conference report of the Defense authorization bill:

Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, or lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

What does this mean? This means we have agreed to preserve current law for the three groups specified, as interpreted by our Federal courts, and to leave to the courts the difficult questions of who may be detained by the military, for how long, and under what circumstances.

And the Due Process Guarantee Act will clarify that citizens and lawful permanents cannot be detained without charge or trial if they are apprehended domestically.

I interpret current law to permit the detention of U.S. citizens as "enemy combatants,'' consistent with the laws of war, only in the very narrow circumstance of a citizen who has taken an active part in hostilities against the United States and is captured outside the United States in an area of "active combat operations,'' such as the battlefields of Afghanistan. This was the Supreme Court's narrow holding in Hamdi v. Rumsfeld in 2004.

I am sorry to say that Hamdi has been mischaracterized in this body. Whether Congress should grant the President more expansive powers of detention or act to curtail the powers identified by the Supreme Court in Hamdi is a question that Congress will continue to debate in the future. And we introduced the Due Process Guarantee Act to help clarify current law: that citizens and lawful permanents cannot be detained without charge or trial if they are apprehended domestically.

I would like to point out the errors in the legal analysis by those who would interpret current law, or this Defense Authorization Act, to authorize the indefinite detention of U.S. citizens without charge or trial, irrespective of where they are captured or under what circumstances.

Let's turn to the Supreme Court's 2004 opinion in Hamdi v. Rumsfeld, which has been incorrectly cited by others for the proposition that the 2001 AUMF permits indefinite detention of American citizens regardless of where they are captured.

Hamdi involved a U.S. citizen, Yaser Esam Hamdi, who took up arms on behalf of the Taliban and was captured on the battlefield in Afghanistan and turned over to U.S. forces. The Supreme Court's opinion in that case was a muddled decision by a four-vote plurality that recognized the power of the government to detain U.S. citizens captured in such circumstances as "enemy combatants'' for some period, but otherwise repudiated the government's broad assertions of executive authority to detain citizens without charge or trial.

In particular, the Court limited its holding to citizens captured in an area of "active combat operations'' and concluded that even in those circumstances, the U.S. Constitution and the due process clause guarantees U.S. citizens certain rights, including the ability to challenge their enemy combatant status before an impartial judge. The plurality's opinion stated:

It [the Government] has made clear, however, for the purposes of this case, the "enemy combatant'' that it [the Government] is seeking to detain is an individual who, it alleges, was "part of or supporting forces hostile to the United States or coalition partners'' in Afghanistan, and who "engaged in an armed conflict against the United States'' there. Brief for Respondents 3.

That was all a quote from the plurality opinion, and it continues:

We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The opinion goes on to say at page 517:

We conclude that the AUMF is explicit congressional authorization for the detention of individuals--

And here it is--in the narrow category we describe. . . . And the narrow category they describe is one who is part of forces hostile to the U.S. on the battlefield of Afghanistan. Indeed, the plurality later emphasized that it was discussing a citizen captured on the battlefield. In responding to Justice Scalia's dissenting opinion, the plurality opinion says:

Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone.

The plurality italicized and emphasized the word "foreign'' in that sentence.

Thus, to the extent the Hamdi case permits the government to detain a U.S. citizen until the end of hostilities, it does so only under a very limited set of circumstances; namely, citizens taking an active part in hostilities who are captured in Afghanistan and who are afforded certain due process protections, at a minimum.

It is also worth noting that amid lingering legal uncertainty regarding whether the government had the authority to detain Hamdi, the Government--this was the Bush administration--saw this and released Hamdi to Saudi Arabia on the condition that he relinquish his U.S. citizenship.

As a result, I don't regard the Supreme Court's decision in Hamdi as providing any compelling support for broad assertions of legal authority to detain U.S. citizens without trial. Certainly, the case provides no support for the indefinite detention of citizens captured inside the United States.

Let me go back to something. In 1971, the Congress passed, and Richard Nixon signed into law, a Non-Detention Act to preclude this very possibility. That act was intended in large measure to put the wrongs of Japanese internment during World War right. It provides simply:

No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.

I very much agree with the Second Circuit Court of Appeals, which held in the case of Padilla v. Rumsfeld that:

[W]e conclude that clear congressional authorization is required for detentions of American citizens on American soil because . . . the Non-Detention Act . . . prohibits such detentions absent specific congressional authorization.

The Second Circuit went on to say that the 2001 AUMF "is not such an authorization and no exception to [the Non-Detention Act] otherwise exists.''

The Fourth Circuit came to a different conclusion when it took up Padilla's case, but its analysis turned entirely on disputed claims that "Padilla associated with forces hostile to the U.S. Government in Afghanistan'' and, "like Hamdi,'' and this is a quote, "Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi.''

To help resolve this apparent dispute between the circuits, I believe we need to pass the Due Process Guarantee Act that my cosponsors and I are introducing today.

. . .

This is important. We spent about half a day on this floor discussing this with Senator Levin, with Senator McCain, in the cloakroom with Senators Lee and Paul, as well as with a whole host of staff both from the Armed Services Committee as well as the Intelligence and Judiciary Committees. Here is the conclusion: I, and many of my colleagues and legal scholars, believe neither the AUMF nor the provisions of the National Defense Authorization Act that we are considering today constitute such an express authorization to detain American citizens.

As I previously mentioned, I sponsored compromise amendment No. 1456 to the Defense bill when it passed the Senate and that amendment has now become section 1021(e) of the conference report specifically to prevent misrepresentations from providing Congressional intent to support the detention of Americans.

. . .

Despite my longstanding opposition to the detention provisions in this bill, I will be voting yes on this important legislation. The main reason I support the defense authorization bill is because it ensures our troops deployed around the world--especially those in Afghanistan--have the equipment, resources, and training they need to defend this Nation.

I wish to sum up by quoting Justice Sandra Day O'Connor, writing for the plurality in Hamdi. Here is what she wrote:

As critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.

This is what Senator Kirk, Senator Lee, Senator Paul, and those of us on the Democratic side who have worked on this truly believe. What about the person captured on the corner who looks a certain way, who gets picked up and put into detention? Does that person have the right to a charge and to a trial? Our system of due process and the Constitution of the United States say, simply, yes.

I look forward to working with my colleagues to pass the due process guarantee bill.

Senator Kirk rose to support the Feinstein bill briefly, beginning on page 32.

Other senators who spoke to voice their support for the NDAA's detention provisions: Senators Kerry, Ayotte, and Graham.

Senators who spoke in opposition to the provisions include: Senators Harkin, Leahy, Coons, and Durbin.

You can see our earlier post with the House's debate on the conference report here, and our previous coverage of the Senate's floor debate here, here, here, and here. Read the detention-specific provisions of the conference report here, and read Bobby's post-passage musings here.