Senate Floor Speech on the Detainee Provision in the Defense Authorization Bill
Remarks as prepared for delivery
Friday, November 18, 2011
This is a statement about the comments that have been made relative to the detainee provisions in Senate Bill 1867. First, I want to comment on the Statement of Administration Policy, or the so-called S.A.P.
Quote from the SAP:
“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.”
Given how important the Administration says these authorities are, it should be helpful to have them codified, so that they stand on the strongest possible footing.
“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.”
Section 1031 was written by Administration officials for the purpose of codifying existing authority. The description of persons covered is identical to the position taken by the Administration and upheld in the courts. The provision specifically provides that nothing in the provision either limits or expands the authority of the President or the scope of the AUMF.
It is worth noting that the SAP does not support the argument made by some Senators that section 1031 creates a “new” or “unprecedented” authority. On the contrary, the SAP acknowledges that the provision codifies existing law. This is hardly surprising, since the Committee accepted all of the Administration’s proposed changes to the provision.
“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.”
It is interesting that the SAP states that the amendment would “appear to” mandate military custody. In fact, it does not mandate military custody and it does not tie the Administration’s hands, because it includes a national security waiver which allows suspects to be held in civilian custody.
“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.”
The Administration itself asked that we delete language in section 1031 that would have excluded the detention of U.S. citizens or lawful resident aliens based on conduct taking place within the United States. If the Administration believes it is appropriate to authorize military detention inside the United States under section 1031, it is not at all clear what “serious and unsettled legal questions” could be raised in the narrow category of cases covered by section 1032, by requiring such detention subject to a national security waiver.
Nothing in section 1032 would require, or even permit our military to “patrol our streets.” Section 1032 applies, by its terms, only to a person “who has been captured in the course of hostilities” authorized by the AUMF. The provision has no applicability to a person who has not already been so captured, and does not speak to the question of when or where such a capture might be authorized. The provision does not give the military authority to make arrests or conduct any law enforcement functions inside the United States.
“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.”
It is not clear what “walls” the Administration thinks the provision builds. Nothing in the provision limits the participation of law enforcement or intelligence professionals in the interrogation of detainees in military custody, or vice versa, or the sharing of information between them.
"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 provision does not limit the flexibility of the Executive Branch to choose the appropriate tool for taking on terrorists. On the contrary, the provision expressly directs the President to establish procedures for making determinations of coverage, authorizes the executive branch waiver of military detention requirements where they do apply, and expressly authorizes the transfer of any detainee to civilian custody for trial.
"The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role."
It is not clear why the Administration thinks that the use of a waiver would be problematic in “time sensitive operations.” The need for a waiver is not triggered until the Executive Branch determines that an individual is covered. The President has complete control over who makes these determinations, how they are made, and when they are made, so the Executive Branch should never be faced by a determination of coverage for which it is not ready. And even if for some reason Executive Branch officials were not ready to deal with their own determination, the provision specifically provides that a determination of coverage may not be used to interrupt ongoing surveillance, intelligence gathering, or interrogation sessions.
"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."
Detention under section 1032 is expressly limited to persons for whom detention is authorized under criteria currently used by the Executive Branch and the courts. The “new and untested legislative criteria” about which the SAP expresses concern is language narrowing the application of the provision to a small category of those for whom detention is already authorized.
Because the provision addresses only the question whether an individual should be transferred to military custody after capture, it is not clear how it could possibly threaten the ability of executive branch officials to “act swiftly and decisively to capture” anybody.
Because the provision expressly states that it may not be applied to interfere with an ongoing surveillance, intelligence gathering, and interrogations, it is not clear how it could possibly threaten the ability of executive branch officials to “interrogate terrorism suspects” or 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."
The Administration reviewed the language directing the President to develop procedures and made several suggestions for improvements to that language. The committee adopted all of the Administration’s suggestions.
The remaining change suggested by the Administration, which the committee did not adopt, was a proposal to limit the application of the provision to persons captured “abroad.” This difference does not constitute a “myriad” of problems which are complex or hard to understand.
"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."
The language was included to address concerns expressed by Administration officials. That does not in any way constitute an acknowledgement that those concerns were valid. Whether these concerns were valid or not, they have now been resolved by specific language in the revised provision.
"The certification and waiver, required by section 1033 before a detainee may be transferred from Guantanamo Bay to a foreign country, continue to hinder the Executive Branch’s ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive Branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers."
The provision is not only "intended to be somewhat less restrictive" than provisions included in previous authorization and appropriations acts signed by the President: it is less restrictive. Unlike last year’s bill, this year’s provision includes a waiver, which allows the Administration to proceed with a transfer even if the certification requirements cannot be met.
Congress has expressed strong concerns about recidivism among GITMO detainees who have been released in the past. It cannot be in our national security interests to "act swiftly" if we fail to provide adequate safeguards against terrorists rejoining the fight against us.
In discussions of this issue, Administration officials made a single "priority" request: that the provision be made a one-year limitation instead of a permanent limitation. The committee agreed to that change.
"Section 1034’s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate."
This provision is the same as provisions included in last year’s authorization and appropriation acts and signed by the President.
In discussions of this issue, Administration officials made a single “priority” request: that the provision be made a one-year limitation instead of a permanent limitation. The committee agreed to that change.
"Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies."
Section 1035 does not conflict with the Executive Order of the inter-agency review process established in the Executive Order. Rather, it requires the issuance of procedures to implement the review process required by the Executive Order.
The Executive Order states that a GITMO detainee will not be released if the interagency process results in a unanimous recommendation against release. It states that a GITMO detainee will be released if the interagency process results in a unanimous recommendation for release. It is silent as to what happens if the process does not result in a unanimous recommendation. The provision in that bill addresses that issue by providing that no GITMO detainee will be released without the consent of the Secretary of Defense. This does not contradict the Executive Order. It is a truism, since under the Executive Order no detainee may be released without the agreement of all agencies, including the Department of Defense.
In discussions with the Committee, Administration officials did not raise this provision as a "priority" issue.
"Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense."
The only new requirement imposed by section 1036 is the requirement for a military judge and legal representation for any detainee who will be held in long-term custody.
In discussions with the committee, the Administration did not object to this new requirement. On the contrary, the only change requested by the Administration in this provision was to strike the words "long-term." The committee did not agree to this proposed change, because it would have been onerous to impose this requirement in the case of all detainees, including those who are captured and released, or held on a short-term basis.
Mr. President, I now want to discuss some of the statements made by the senior senator from California yesterday. The first comment of Senator Feinstein that I want to address is the one in which she said:
"Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force."
The committee accepted all of the Administration’s language changes, which were written to ensure that the provision is consistent with the AUMF.
The provision specifically states that it does not "limit or expand the authority of the President of the scope of the AUMF."
The SAP on the provision states that "the authorities codified in this section already exist" under the AUMF.
The next quote of the senator from California is the following:
Section 1031 "would authorize the indefinite detention of American citizens without charge or trial. . . . Do we want to go home and tell the people of America that we're going to hold them if such a situation comes up without any review, without any habeas?"
The committee accepted all of the Administration’s proposed changes to section 1031. As the Administration has acknowledged, the provision does nothing more than codify existing law. Indeed, as revised pursuant to Administration recommendations, the provision expressly "affirms" an authority that already exists. The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.
The initial bill reported by the committee included language expressly precluding "the detention of citizens or lawful resident aliens 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." The Administration asked that this language be removed from the bill.
Section 1031 makes no reference to habeas corpus, and places no limitation on habeas corpus review. Nor could it. Under the Constitution, habeas corpus review is available to any American citizen who is held in military custody, and to any non-citizen who is held in military custody inside the United States. With regard to non-citizens who are detained outside the United States, section 1036 would establish a process for status determinations which would include, for the first time, the right to a military judge and a military lawyer.
Now the next quote of the senator from California is the following:
Under section 1032 "any noncitizen al Qaeda operative captured in the United States would be automatically turned over to military custody. Military custody for captured terrorists may make sense in some cases, but certainly not all."
Section 1032 does not mandate military custody and it does not tie the Administration’s hands, because it includes a national security waiver which expressly allows any suspect to be held in civilian custody. Nothing would be automatic: the Administration would have the discretion to waive military detention and hold a detainee in civilian custody. Nothing is automatic. The administration would have the discretion to waive military detention and hold a detainee in civilian custody if it decided to do so.
The next quote:
In the case of Najibullah Zazi, "if the mandatory military custody in the armed service bill was law, all of the surveillance activities, all of what the FBI did would have to be transferred immediately to the military . . . . Then the government would have been forced to split up co-defendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy. Zazi was a permanent legal resident. His co-conspirators were both U.S. citizens. They would be prosecuted on terrorist charges in federal criminal court, but Zazi himself would be transferred to military custody. Two different detention and prosecution systems would play out and could well complicate a unified prosecution."
It is not accurate to say that everything the FBI did in the Zazi case would have had to be "transferred immediately to the military." First, it is not at all clear that Zazi was covered by the provision, because we do not know that he was al Qaeda and, in any event, there is an exclusion for lawful residents of the United States. Second, until a coverage determination was made, no transfer would be required. And the President would decide how and when that determination would be made. Finally, even if Zazi were somehow determined to be covered, the requirement could have been waived, and Zazi could have been kept in civilian custody in the discretion of the Executive Branch.
The Executive Branch would not be "forced to split up co-defendants" in the Zazi case (even if he was covered by the provision) or in any other case. First, the provision includes a waiver that would have allowed him to be held in civilian custody from the outset, if Executive Branch officials decided to do so. Second, the provision expressly authorizes the transfer of any military detainee to civilian custody for trial in the federal courts even without a waiver. So Executive Branch officials would always have the ability to consolidate cases in the federal courts.
Now, the next statement which the senator made was the following:
"The Department of Justice has said that approximately one-third of terrorists charged in federal court in 2010 would be subject to mandatory military detention, absent a waiver from the Secretary of Defense."
Taking the Justice Department at its word, there have been approximately 300 terrorist cases in federal court over the last 10 years, or about 30 a year. One third of that number would be just ten cases a year in which Executive Branch officials would have to make determinations of coverage and, if necessary, exercise their waiver authority.
Even that number appears to be exaggerated. Cases of attempted al Qaeda attacks on American soil have been highly publicized and receive extensive scrutiny in Congress. We are not aware of more than a half a dozen cases, total, over the last decade. The reason that the debate on this issue always seems to come back to the same handful of cases appears to be that there are only a handful of cases that are potentially covered by this provision.
Now, the senator contends in her next quote that:
"the mandatory military custody is unwise because our allies will not extradite terror suspects to the United States for interrogation and prosecution or even provide evidence about suspected terrorists if they will be sent to a military brig or Guantanamo."
The provision expressly states that the waiver authority may be used to address these concerns and assure an ally that a suspect will not be held in military custody if transferred to the United States.
Administration officials suggested a wording change to preclude misinterpretation of this provision. The committee adopted the wording proposed by the Administration.
Now the next quote of the senator from California is that:
Section 1033 essentially establishes "a de facto ban on transfers of detainees out of Guantanamo, even for the purpose of prosecution in united states courts or in other countries."
There is no limitation at all in the bill on the transfer of GITMO detainees to the United States for trial or for any other purpose.
With regard to transfers to other countries, Section 1033 is less restrictive than current law, which was signed by the President earlier this year.
The next quote that I would address is the following:
"Section 1033 requires the Secretary of Defense to make a series of certifications that are unreasonable and candidly unknowable before any detainee is transferred out of Guantanamo."
Again, an example. The administration proposed eliminating the requirement that the Secretary of Defense certified that the foreign country from whence the detainee will be sent is not -- quote – “facing a threat that is likely to substantially affect its ability to exercise control over the individual.”
This same language was included in last year’s authorization and appropriation bills and signed by the President. We added a waiver provision this year, to make it easier to transfer detainees.
In discussions with the committee, the Administration made a single "priority" request on this issue: that the provision be made a one-year limitation instead of a permanent limitation. The committee agreed to that change.
Finally, Mr. President, the last quote of the senator from California from yesterday that I’m going to address is the following:
"In March, the president issued an executive order that laid out the process for reviewing each detainee's case to make sure indefinite detention continues to be an appropriate and preferred course. Section 1035 essentially reverses the interagency process created by the president's order."
The Executive Order addresses only the case in which the decision of the inter-agency team is unanimous. If a decision is unanimous, that means that the Secretary of Defense has concurred in it. It isn’t clear why the Secretary would then reject that decision. If it isn’t unanimous, there are no findings for the Secretary to overturn.
In discussions with the Committee, Administration officials did not raise this provision as a "priority" issue.
This issue is also addressed in remarks on the Statement of Administration Policy.