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Letter to Majority Leader Reid

Mark Udall and 12 other Democratic members of the Senate Intelligence and Judiciary committees announced today that they have sent a letter to Senate Majority Leader Harry Reid, expressing opposition to controversial detainee provisions included in the National Defense Authorization Act (NDAA) and requesting that the provisions be 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 SASC's consideration of the bill. And 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.

The provisions would allow the U.S. military to indefinitely hold in military prisons U.S. citizens accused of terrorism. In addition, the Department of Defense would be required in all cases 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.

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.

"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. "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."

The provisions have serious, real-world consequences, the senators continued. 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 letter to Reid follows:

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.


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