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Udall opposes detainee provisions in defense bill

Sen. Mark Udall.

Holding suspects indefinitely undermines civil liberties and national security

By Summit Voice

Mark Udall and 12 other Democratic members of the Senate Intelligence and Judiciary committees say they are opposed to detainee provisions in the defense spending bill that enables the U.S. Military to hold U.S. citizens accused of terrorism in military prisons indefinitely.

Read a white paper on the detainee provisions here.

The provisions also require the Department of Defense  to hold certain foreign terrorism suspects unless the Defense Secretary, in consultation with the Secretary of State and the Director of National Intelligence, issues a waiver that their release or transfer would be in the interest of national security. And the military would be required to indefinitely prohibit the transfer of Guantanamo detainees to certain countries, even if the detainee were determined to be innocent and not a threat.

In a press release, Udall said he and the other lawmakers have sent a letter to Senate Majority Leader Harry Reid to express their opposition and requesting that the provisions be removed.

“We wholeheartedly support providing needed resources to our Armed Forces. However, we do not support provisions that would undermine our nation’s counterterrorism efforts,” Udall and his colleagues wrote in the letter. “Given these significant concerns over the legislation, we request that you work to ensure that the ‘Detainee Matters’ that are part of Subtitle D are removed.”

Udall, who is a member of both the Intelligence and Senate Armed Services committees (SASC), cast the lone vote against the detainee provisions of the NDAA during the committee’s consideration of the bill.  He has made clear that while he supports the rest of the important provisions in the defense bill, the detainee provisions must be changed — as a matter of national security and civil liberties.

Udall believes the provisions set overly rigid, unrealistic and potentially dangerous conditions that could disrupt vital counterterrorism operations, harm national security, deny civil liberties to U.S. citizens and jeopardize the prosecution of terrorists captured on American soil.

The provisions have serious, real-world consequences.  Today, for example, every suspected terrorist captured in the United States has been first taken into custody by U.S. law enforcement.

But the provisions would require the FBI to hand over a terrorism suspect captured in the U.S. — like Najibullah Zazi — to the military, even if the FBI is in the middle of an interrogation in which the individual is providing information about an unfolding terrorist plot.  A suspected terrorist captured abroad – such as Ahmed Warsame – might have to be kept in military custody, even if potential charges against the suspect are available only in federal criminal courts and not military commissions.

“In sum, mandatory military custody is unwise and will harm our national security,” the senators wrote.

In addition to Udall, the letter was signed by Intelligence Committee Chair Dianne Feinstein, Judiciary Committee Chairman Patrick Leahy, and senators Richard Durbin, Ron Wyden, John Rockefeller, Christopher Coons, Al Franken, Barbara Mikulski, Bill Nelson, Mark Warner, Sheldon Whitehouse, and Kent Conrad.

The full text of the letter:

The Honorable Harry Reid
Senate Majority Leader
522 Hart Senate Office Building
Washington, D.C. 20510

Dear Majority Leader Reid:

We write as Members of the Senate Judiciary Committee and the Senate Select Committee on Intelligence to express our grave concern with Subtitle D (titled “Detainee Matters”) of Title X of S.1253, the National Defense Authorization Act for Fiscal Year 2012. We support the majority of the provisions in this bill, which further national security and are of great importance to the needs of the men and women in our Armed Forces, but we cannot support the controversial detention policy provisions in S.1253.

The Executive Branch must have the flexibility to consider various options for handling terrorism cases, including the ability to prosecute terrorists for violations of U.S. law in Federal criminal courts. Yet, taken together, Sections 1031 and 1032 of Subtitle D of S.1253 are unprecedented and require more rigorous scrutiny by Congress. Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, Authorization for Use of Military Force (AUMF), the law of war, and the Constitution, especially because it would authorize the indefinite detention of American citizens without charge or trial.

Section 1032 would require that certain terrorism suspects be held in the custody of the Armed Forces, which could disrupt vital counterterrorism operations. For example, if these controversial provisions are enacted, the FBI may have to hand over a terrorism suspect captured in the U.S. – like Najibullah Zazi – to the military in the middle of an interrogation, even if the individual is providing useful intelligence to the FBI about an unfolding terrorist plot. In addition, under these sections, a suspected terrorist captured abroad – such as Ahmed Warsame – may have to be kept in military custody, even if potential charges against the suspect are available only in Federal criminal courts and not military commissions. In sum, mandatory military custody is unwise and will harm our national security.

Recently, the Administration has made clear its opposition to requiring military custody for terrorism suspects by sharing the attached position paper with our offices. We concur with the Administration’s view that mandatory military custody is “undue and dangerous,” and that these provisions would “severely and recklessly undermine” our Nation’s counterterrorism efforts.

On Section 1033, we are concerned about the potential for recidivism of Guantanamo detainees and understand that the Administration has put in place a more stringent review process for all Guantanamo detainees, which must be satisfied before a detainee may be considered for transfer. Yet, for the past two years, Congress has made it virtually impossible for anyone to be transferred out of Guantanamo – even for prosecution in U.S. Federal courts or in other countries. We believe it unwise to make permanent in law the onerous certification requirements in Section 1033. Professionals in the Intelligence Community and law enforcement need the flexibility to use all tools to effectively interrogate, incarcerate, and bring terrorists to justice.

We wholeheartedly support providing needed resources to our Armed Forces. However, we do not support provisions that would undermine our Nation’s counterterrorism efforts. Given these significant concerns over the legislation, we request that you work to ensure that the “Detainee Matters” that are part of Subtitle D are removed.

Thank you very much for your attention to this matter.

Sen. Udall’s white paper on the issue:

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One Response

  1. One has to hope that the politicians do keep alert to what is passed along in the bills before them. This one item if implemented, could open the door to U.S. citizens being arrested without any charges and detained in who knows where. The whole of the Patriot act needs to be readdressed, not just added too. With the wars winding down, we have to be ever more vigilant as to what laws are put on the books. I’m sure that many people believe that there is nothing wrong here, that is until they are put into the system. Giving the Military carte blanche in arresting & detaining U.S. citizens is a dangerous thing to do. At least some of the politicians realize this.

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