Congressman Pearce Statement on NDAA

Op-Ed

By Rep. Pearce

H.R. 1540, the National Defense Authorization Act (NDAA) gives our military the authority to undergo its missions all over the world soldiers from Holloman to Tora Bora in Afghanistan. Every time I have voted on the NDAA since 2003, I considered it possibly the most important vote of the year. So, my staff and I dissect and thoroughly exam the bill, looking for controversial and flawed provisions.

Much of the opposition to the NDAA's passage came from the usual suspects--groups like MoveOn.org and the ACLU. These are organizations that long opposed military action against al-Qaeda, and continually question the motives of our foreign policy.

There were also important objections on the conservative side to this bill, dealing specifically with whether or not the provision in section 1022 excluding American citizens from the "covered persons" language went far enough. This was discussed thoroughly in the Republican Conference before the bill went to the floor for debate. Two of my colleagues, one of whom sits on the Armed Services Committee, had objections to the language. However, after consulting with the Chairman on protection of civil liberties, and getting a supportive response that the Chairman would work in the future to assure our rights are not violated, both Congressmen voted for it. I listened to all objections, from constituents and other Members of the House. I read the language personally many times, and asked my staff to research every objection brought to our attention. We concluded, after many internal discussions and hours of research, that section 1022 sufficiently protected our liberties.

And while section 1022 specifically protects American citizens, there is also strong case law that protects our liberties, and is not overridden in any way by the NDAA. For example, John Walker Lindh was captured on the battlefield in Afghanistan fighting for the Taliban, but within a month was turned over to civilian authorities, and indicted in a federal court. Jose Padilla, a Brooklyn native, was captured at O'Hare Airport in Chicago, and held by the military on suspicion of plotting to set off a dirty bomb. However, the Bush administration was afraid of losing a habeas corpus appeal in the Supreme Court, and turned him over to civilian court, where he was subsequently convicted. In 2004, the Supreme Court actually ruled Hamdi v. Rumsfeld that a US citizen captured on the field of battle, and held as an enemy combatant, has the right to appeal their combatant status in civilian court. Mr. Hamdi, a Baton Rouge native, was also captured in Afghanistan, fighting for the Taliban. To add even more strength to civil liberty protections enshrined in case law the Supreme Court held in Gideon v. Wainwright that a suspect has a constitutional right to an attorney.

There is also a provision in the bill assuring that the military's powers will not interfere with civilian investigations. There was also some controversy over the "national security" waiver included in 1022. The aim of this provision is to assure that a high value target, such as Anwar al-Awlaki, who was a senior al-Qaeda official and Las Cruces native, could be held as an enemy combatant without having to be handed over immediately for a civilian trial. The national security bar is a high one to clear, and the purpose and intent is to ensure that people like Mr. al-Awlaki do not abuse the freedoms that we have for a terrorist group's gain. And as I stated earlier, the bill does not overturn current case law. Therefore, a US citizen held as a combatant for national security reasons still has the right to counsel and a right to appeal their combatant status before a judge.

I also heard some whispers about FEMA detention camps. The only FEMA language that was in previous versions dealt with a pilot program to set up emergency camps for natural disasters like earthquakes and hurricanes. That language was stripped out of the final conference version of the NDAA that passed this week. Plus, the chatter about FEMA detention camps was debunked as collection of internet rumors by the magazine Popular Mechanics. One example cited was a satellite photo from a blog claiming that it was a FEMA "camp" in Wyoming, but the photo was actually of a prison camp in North Korea. You can read more about it here: http://www.popularmechanics.com/technology/military/news/4312850

Basically, I reviewed the bill in minute detail, and exercised my best judgment on the basis of what was best for our troops, our security and our Constitution. This was undoubtedly the most exhaustive legislative effort for me and for my staff this year. I hope this helps to clear up some misconceptions about this important bill.

I am glad to see so many of my countrymen speaking out, and asking the tough questions of their elected officials. Our founders expected the American people to speak out, and keep the folks in Washington on their toes. It is the duty of every citizen to make sure we are doing our job.

Sincerely,
Steve Pearce

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