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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

Location: Washington, DC


Mr. UDALL of Colorado. Mr. President, I come to the floor to comment on the NDAA, the bill in front of us today. I want to start my remarks by acknowledging the leadership of Chairman Levin and Ranking Member McCain. Under their tutelage and leadership the committee has worked tirelessly to craft a Defense Authorization Act that provides our Armed Forces with the equipment, the services, the training, and the overall support they need to keep us safe while they themselves are being protected. I thank the chairman and ranking member, my colleagues, and, most important, the wonderful staff that works for us for their diligence and dedication to this important work.

I also come to the floor to speak out against a proposed change that I think would alter what has been a very effective set of terrorist detention policies and procedures. I believe to make those changes would complicate our capacity to prosecute the war on terror and call into question the principles we as Americans hold dear.

I filed an amendment, No. 1107, that would take a look at what is proposed in the NDAA. We have a solemn obligation to pass the National Defense Authorization Act. But we also have a solemn obligation to make sure those who are fighting the war on terror have the best, most flexible, most powerful tools possible. I have to say again, and I will say it more than two times in my remarks, I am worried these changes we are about to push through would actually hurt our national security.

I am a proud member of the Senate Armed Services Committee. As I have implied, and I want to be explicit, I understand the importance of this bill. I understand what it does for our military, which is why, in sum, what I am going to propose with my amendment is that we pass the NDAA without these troubling provisions but with a mechanism by which we can consider what is proposed and perhaps at a later date include any applicable changes in the law.

We need to hear from the Department of Defense, our intelligence community, and the administration more broadly on what our men and women in the field actually need to effectively prosecute the war on terror, especially before we change detainee policies that are already working. As I am saying, I have serious concerns about the detainee provisions that have been included in the bill.

In my opinion, and in the opinion of many others--and I will share those opinions and insights with my colleagues--these provisions disrupt the capacity of the executive branch to enforce the law, and they impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. In so doing, they inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.

I am not the only one who has serious concerns. The Secretary of Defense has urged us to oppose these new provisions. Both chairmen of the Intelligence and Judiciary Committees strongly oppose them. The President's team is recommending a veto. These are people whose opinions should be carefully considered before we put these new proposals into our legal framework.

In the Statement of Administration Policy the White House states:

We have spent 10 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.

Those are striking words that should give us all pause as we face what seems to me a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists.

I ask unanimous consent to have the entire Statement of Administration Policy printed in the Record at the conclusion of my remarks.


Mr. UDALL of Colorado. Mr. President, these are complex issues that have far-reaching consequences for intelligence, civilian law enforcement agencies, and our intelligence community as they work to keep Americans safe from harm. Despite this fact, the Department of Defense and the national security staff, as far as I know, had little opportunity to review or comment on the final language in the provisions. As a result, these provisions restrained the ``Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.''

That quote comes directly from a letter addressed to the Armed Services Committee from Secretary Panetta. I think we all know that before he held the job he has now, Secretary of Defense, Mr. Panetta, was the Director of the CIA. He very well knows the threats facing our country, and he knows we cannot afford to make mistakes when it comes to keeping our citizens safe.

I also ask unanimous consent that Secretary Panetta's letter be printed in the Record at the conclusion of my remarks.


Mr. UDALL of Colorado. Mr. President, the provisions I am speaking to are well intended. I have much admiration for my colleagues who propose them, but I think we need to take some more time to consider the ramifications. The United States, our country, can currently choose from several options when prosecuting terrorists. That flexibility has allowed us to try, convict, and imprison hundreds of terrorists, and it allows the government to select the venue that will provide the highest likelihood of obtaining a conviction. The current detention provisions in the bill we are debating would strip away that flexibility and potentially impair our capacity to successfully

prosecute and convict terrorists. It is not clear to me why, after 10 years of successfully prosecuting terrorists and preventing another 9/11-like attack, why we would want to limit our options while our enemies are constantly adapting their tactics and expanding their efforts to do us harm.

In a recent op-ed in the Chicago Times, a bipartisan group of three former Federal judges, including William S. Sessions, who was also the appointed Director of the FBI under President Reagan, said it best when describing these provisions:

Legislation now making its way through Congress would seek to over-militarize America's counterterrorism efforts, effectively making the U.S. military the judge, jury and jailer of terrorism suspects to the exclusion of the FBI and local and State law enforcement agencies. As former Federal judges, we find this prospect deeply disturbing. Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense.

And I ask unanimous consent that op-ed be printed in the Record at the conclusion of my remarks.


Mr. UDALL of Colorado. I also point out these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect. One section of these provisions, section 1031, could be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the military to perform law enforcement functions on American soil. That alone should alarm my colleagues on both sides of the aisle. But there are other problems with these provisions that must be resolved.

These detainee provisions are unnecessary, counterproductive, and potentially harmful to our counterterrorism efforts. I know I have said this a couple of times already, but it feels as though they are being rushed through in a manner that does not serve us well. The Department of Defense has had little input. There have been no hearings. Earlier this week the changes were presented to us in the Armed Services Committee just hours before we were asked to vote on them. These are just too important a set of questions to let them pass without a thorough review and far greater understanding of their effect on our national security and our fight against terrorism.

It feels to this Senator that we are rushing hastily to address a solution in search of a problem. We ought to hear from the Department of Defense, the intelligence community, our colleagues, and other relevant committees before we act. Do we believe this Congress--again, let me underline that after 10 years of successfully prosecuting the war on terror--should substitute its views for that of our Defense, intelligence, and Homeland Security leadership without careful analysis?

I recently received a letter signed by 18 retired military leaders in opposition to these provisions. The letter states that: ``Mandating military custody would undermine legitimate law enforcement and intelligence operations crucial to our security at home and abroad.'' I could not agree more.

I would ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.


Mr. UDALL of Colorado. We are already trying and convicting terrorists in both civilian courts and under military commissions. The provisions that are in this bill would require the DOD to shift significant resources away from their mission, to act on all the fronts all over the world, and they would become a police force and jailer. This is not what they are good at. This is not what we want them to do. I think it has potentially dangerous consequences because we have limited resources and limited manpower. We would not lose anything by taking a little bit more time to discuss and debate these provisions, but we could do real harm to our national security by allowing this language, unscrutinized, to pass, and that is exactly what our highest ranking national security officers are warning us against doing.

This is a debate we need to have. It is a healthy debate, but we ought to be armed with all of the facts and expertise before we move forward. The least we can do is take our time, be diligent, and hear from those who will be affected by these new limitations on our ability to prosecute terrorists.

It concerns me that we would tell our national security leadership--a bipartisan national security leadership, by the way--that we would not listen to them and that Congress knows better than they do. It doesn't strike me that that is the best way to secure and protect the American people. That is why I have filed amendment No. 1107. I think it is a commonsense alternative that will protect our constitutional principles and beliefs while also allowing us to keep our Nation safe. The amendment has a clear aim, which is to ensure we follow a thorough process and hear all views before rushing forward with new laws that could be harmful to our national security.

What is in the amendment? It is straightforward. Specifically the amendment would require that our Defense, intelligence, and law enforcement agencies report to Congress with recommendations for any additional authorities or flexibility they need in order to detain and prosecute terrorists. In other words, let's not put the cart before the horse or fix something that is not broken. Let's first hear from the stakeholders as to what laws they believe need to be changed to give them better tools to do their job.

My amendment then asks for hearings to be held so we can fully understand the views of respected national security experts. Moreover, it would require input from each of the relevant committees to ensure that we have carefully considered the benefits and consequences of our actions. The chairmen of our Judiciary and Intelligence Committees have deep concerns about the detainee provisions in the pending legislation. And, of course, as we underwent this process, the existing laws that guide our actions today would remain in place. They have been successful.

I see some of my colleagues who I think share my views who have come to the floor. They also made the compelling case that it is a system that is working. Why would we change it without thinking it through? It is straightforward, it is common sense, and it allows us to make sure we will win the war on terror.


Mr. UDALL of Colorado. I thank the Senator from Illinois for his question. My understanding is the Senator from Illinois is correct, that provision 1032 would change the way in which interrogations would unfold. There may be some in the Senate who would see it differently, but that is all the more reason to adopt my amendment, which would allow a thorough process of hearing from the very experts who interrogated the Underwear Bomber and other experts who have been on the front lines in fighting terrorism. We ought to go slow. We should not fix something that is working fine right now.

I thank the Senator for his question.


Mr. UDALL of Colorado. The Senator from Illinois is correct. Mr. President, 1031 would do just that, and it would come directly at a piece of law, posse comitatus, which dates back to the Civil War, that is held dear by all of us in America because it distinguishes between the military used to protect us against foreign foes and how we manage our own civil affairs here at home.

Also, as the Senator alludes to, it causes questions to be raised about something that is very sacred in our system of law, which is the writ of habeas corpus. You have to prove why you hold someone. You cannot detain an American citizen indefinitely in any other circumstance.

I thank the Senator for his questions.


Mr. UDALL of Colorado. I am familiar with the language in the general way it has been introduced. I would say to the chairman of the Armed Services Committee that we had a chance to review this language starting about 48 hours ago.

One of the reasons I think my amendment is important is it would give those voices, which are being heard more and more as of today, who have concerns with this provision--they are not sure how it applies--that that is all the more reason to slow this down, to keep the existing law in place, and go through a more thorough process to understand the ramifications of the waiver provision and the other provisions the chairman and ranking member----


Mr. UDALL of Colorado. What I would say to my friend is that just having had an opportunity to review this language in the last 48 hours, I have no question about his intent, but I have heard from people with much greater expertise than I have that there are questions that are still unanswered. Maybe this provision is appropriate and will do what the chairman says it will do. But, again, that is why I think it would be well worth our time to take a further look at what is involved in these provisions.


Mr. UDALL of Colorado. I am familiar now because the Senator from Michigan has shared that fact with me. I am also familiar with the fact that the administration has other questions and concerns which has caused it to issue a set of provisions and issues they wish to further consider.


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