Military NOT Authorized To Indefinitely Detain US Citizens Under The NDAA

Actual Bill:

http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf

p. 362

(b) APPLICABILITY TO UNITED STATES CITIZENS
16 AND LAWFUL RESIDENT ALIENS.—
17 (1) UNITED STATES CITIZENS.—The require18
ment to detain a person in military custody under
19 this section does not extend to citizens of the United
20 States.
21 (2) LAWFUL RESIDENT ALIENS.—The require22
ment to detain a person in military custody under
23 this section does not extend to a lawful resident
24 alien of the United States on the basis of conduct
25 taking place within the United States, except to the
VerDate Mar 15 2010 01:53 Nov 16, 2011 Jkt 019200 PO 00000 Frm 00362 Fmt 6652 Sfmt 6201 E:\BILLS\S1867.PCS S1867 tjames on DSK6SPTVN1PROD with BILLS
363
•S 1867 PCS
1 extent permitted y the Constitution of the United
2 States.

Letter from Senator Bennet:

Thank you for contacting me regarding the provisions addressing detainee matters in the National Defense Authorization Act (NDAA) for Fiscal Year 2012, S. 1867. I appreciate hearing from you.

As you may know, the Senate recently debated several NDAA provisions addressing detainee matters. One provision, Section 1031 of the bill, attempts to codify the President’s authority to detain members of al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States. As requested by the Obama Administration, Section 1031 contains a provision explicitly clarifying that it does not expand the President’s existing authority to detain. A second provision, Section 1032, requires military custody of al-Qaeda members who attack or make plans to attack the United States. It is important to point out that, under this provision, the Executive Branch has the flexibility to keep a covered detainee in civilian custody, pursuant to a national security determination, or to transfer a military detainee for trial in the civilian courts. The bill also includes provisions relating to the transfer of detainees held at Guantanamo Bay.

Many had concerns that the detainee provisions in the NDAA amounted to a major shift in U.S. policy. Some news reports characterized the provisions of the bill as potentially allowing the indefinite detention of any U.S. citizen for any reason. Let me clearly state that the bill does not authorize any such action. In fact, by codifying the specific authority of the President, Congress has reengaged on a very important national security issue and attempted to clarify what the President can and cannot do. This is a noteworthy departure from prior post-9/11 Congress which have not come to consensus on a detainee legal framework.

Nevertheless, I am concerned that the detainee provisions could raise questions regarding the process by which the Administration detains and prosecutes members of al-Qaeda who attempt to attack the U.S. For example, we must ensure that the military custody provisions do not hamper the Administration’s ability to prosecute a detainee in civilian courts if it determines that this is the most appropriate venue.

Senator Mark Udall from Colorado offered an amendment to the NDAA that would have removed the underlying provisions addressing detainee matters. Instead, it would have required full participation from the Administration and the Senate Armed Services, Judiciary, and Intelligence committees prior to legislation codifying detainee policies. Due to my concerns with the provisions, I supported Senator Udall’s amendment. Unfortunately, it was defeated by a vote of 38 to 60.

I also supported an amendment introduced by Senator Dianne Feinstein of California to clarify that Section 1031 does not affect existing law or authorities relating to the detention of U.S. citizens, lawful resident aliens of the U.S., or any other persons who are captured in the United States. Senator Feinstein’s amendment passed handily.

Given the complexity and importance of this issue, and the heated rhetoric and confusion about the actual wording of the detainee provisions, I invite you to read them for yourself. You can find them at page 426 of S. 1867, which you can access here:

The overall bill, including the language of Senator Feinstein’s amendment, makes it abundantly clear that the detainee provisions do not affect existing law relating to the detention of U.S. citizens. In addition, I plan to work with the Administration to ensure that it has the flexibility to prosecute detainees in the most effective ways possible. In the end, I voted yes on the overall bill, which sets annual pay for our troops and provides the tools that keep them safe. The NDAA passed the Senate with overwhelming bipartisan support (93 to 7) and must now be reconciled with the House version of the NDAA.

I value the input of fellow Coloradans in considering the wide variety of important issues and legislative initiatives that come before the Senate. I hope you will continue to inform me of your thoughts and concerns.

For more information about my priorities as a U.S. Senator, I invite you to visit my website at Again, thank you for contacting me.


Sincerely,

Michael Bennet
United States