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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

Location: Washington, DC


Mr. LEVIN. Mr. President, Senators are encouraged to come to the floor to offer their amendments this morning. We are going to be here doing business. Senators who have remarks, speeches, proponents of the amendments, opponents of amendments are given an opportunity here today which may be one of the relatively few opportunities that are going to be available.

We will be here the Monday after we return as well before the vote at 5:30 on Monday, November 28, on a judicial nomination, but we will also be here before that time to hear from proponents and opponents of amendments and to have people offer amendments. We are not going to have the whole week, we have been told by the leader, when we come back for this bill, so we are going to have to make additional progress today. We made some progress last night. We cleared some amendments last night. We are going to try to clear some additional amendments this morning and adopt some amendments that can be cleared. We have 155 filed amendments, and we have 31 pending amendments. Again, we are going to try to clear some of those today and adopt some of those today, and we are going to try to do the same on Monday when we return.

Again, I urge that Senators who want to speak on pending or filed amendments, proponents of those amendments, opponents of those amendments, let us know immediately, if you would, whether you wish to speak in support of or in opposition to pending or filed amendments. Obviously, if people want to oppose amendments, then we are not going to clear them if we know about that, but we have to know about that. These are on file. The clerk has the amendments. We know which amendments are pending. The list is available.

The staff is going to be here for the first couple days, at least, next week prior to Thanksgiving. Our staffs will be here to work with staffs of Senators to try to revise amendments that may be open to revision. So that work is going to go on, and we have to use these time periods--today and next Monday and Tuesday--for work on amendments and the Monday we get back for work on amendments because we need to get this bill passed.

This is a critically important bill, and with 155 filed amendments, 31 of which are already pending, we have a lot of work to do. We are going to try to do the very best we can, but we have to get a bill passed and we have to debate some of the very significant amendments which have already been filed and are pending.

So I want to thank my friend from Arizona and see whether he might want to comment on my comments or otherwise.


Mr. LEVIN. Mr. President, first of all, I thank my friend and colleague from Arizona, the ranking member, for his comments and for all of his work on the committee. All of our colleagues on the committee have put in a lot of time.

I want to emphasize something he said about the opportunity here for debate--that we have a number of pending amendments, including the amendments on detainees. We are here to hear debate on those or any other amendments today and on Monday. We were here yesterday and had a long debate. As the Senator from Arizona said, we had a lengthy debate, and we were prepared to vote. The supporters were not. That is fair enough. If they want additional time to debate it, we should welcome that. But there is time, there is time today and there is time on Monday when we get back to debate that amendment and those amendments not only on the detainees but on many other issues that are important that are in this bill.

I agree with my friend from Arizona that we should ask the majority leader to make Monday night available for votes after the scheduled vote at 5:30. We need to have votes on amendments. I would hope that amendments that can't be agreed to will be voted on on Monday night after the vote on the judge, which is scheduled for 5:30.

I also agree with the Senator from Arizona about trying to get a limit on the number of amendments. We will try again today to see if we can get a

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unanimous consent agreement. I haven't had a chance to talk this morning with the Senator from Arizona, but we will try--and he just has given me an indication that this is fine with him--to see if we can't set a time later on today, maybe at noon or 1:00, for the filing of amendments and to limit amendments to those that are filed by that time.
We are going to try to get that done with a safety valve, which I suggested last night and I think is acceptable to the Republican manager, my friend from Arizona, which is that, in addition to whatever amendments are filed by whatever time we put in the unanimous consent proposal, there be an additional two amendments on each side that would be available to the managers that would need to be relevant--just relevant amendments--to an amendment that is filed or relevant to the bill. I think you would need a safety valve, and people would understand that. Those two amendments would be allocable--two amendments each by the Republican manager and myself, if that is agreeable. It would take unanimous consent, but I think everyone realizes we have to have a universe here that we can work with during the next week.


Mr. LEVIN. Mr. President, I will be done in one moment so that our friend from New Mexico can schedule his presentation.

I just wanted to add one additional thing to what the Senator from Arizona said, in addition to agreeing with him. We will be here today and we will be here a week from Monday so that there will be plenty of opportunity to debate these pending amendments or other amendments, and people need to know we are going to be seeking votes on these pending amendments if we can't clear them or work them out.

There will be an opportunity for debate before the vote.

One other comment; that is, I will have a detailed statement addressing the detainee issue a little later on this morning. It will address some of the statements that are incorrect and misleading which were in the administration's statement on this subject. Also, some of the statements of our colleagues need to be addressed and, I believe, corrected. Because this is a complex issue it is important to know what is in the bill and what is not in the bill. If it is properly characterized and if it is properly stated, it is still complex, but to misstate it or overstate it or to mischaracterize what is in our bill just confuses an issue which needs to be debated on its merits and not confused. It is complicated enough without obfuscation and confusion about what is in the bill on detention or other matters and what is not in the bill.

I yield the floor.


Mr. LEVIN. I thank the Senator from New Mexico for his remarks. I agree with him; it was a lively debate. I also agree with him it is to be desired that kind of debate occurs more often in the Senate. The Senator from New Mexico has been very active in the effort to have these kinds of debates by rules changes, which would make these kinds of debates a lot more likely, and by other mechanisms.

To make an inquiry, did the Senator from New Mexico restore the regular order to the Levin-McCain amendment? I missed that.


Mr. LEVIN. Mr. President, in a short while I hope we will have, and expect that we will have, some amendments that have been cleared on both sides that we are going to be able to offer and hopefully adopt.

What I thought I would do now is make a fairly lengthy statement about statements which have been made relative to the detainee provisions in S. 1867. First, I want to comment on the statements that were made in the Statement of Administration Policy--this is a so-called SAP. So when I refer to SAP during these comments, and I use that term, it is the acronym which means Statement of Administration Policy.

I am going to first quote exactly from the SAP, and then I am going to

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comment and show why these statements I am referring to are inaccurate. From the SAP:
Section 1031 attempts to expressly codify the detention authority that exists under the authorization for Use of Military Force.

The authorization for use of military force is referred to as the AUMF. The quote continues:

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-Qaida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals.

Well, Mr. President, given how important the administration says these authorities are, it should be helpful to have them codified so they can stand on the strongest possible footing.

The next quote:

Because the authorities codified in this section [1031] already exist, the administration does not believe codification is necessary and poses some risk.

The quote continues:

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.

The quote continues:

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.

Well, Mr. President, 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 also 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 Statement of Administration Policy, the SAP, acknowledges the provision codifies existing law.

Now, this is hardly surprising since the committee accepted all of the administration's proposed changes to section 1031.

I am continuing to quote from the Statement of Administration Policy:

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.

Well, Mr. President, it is interesting that the SAP states the amendment would ``appear to'' mandate military custody. In fact, it does not mandate military custody and does not tie the administration's hands because it includes a national security waiver which allows suspects to be held in civilian custody.

Next quote:

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.

Well, the administration itself asked that we delete limitations in section 1031 on the applicability of detention authority inside the United States that would have excluded U.S. citizens and lawful residents based on conduct taking place inside the United States to the extent authorized by the Constitution. The exact words were ``except to the extent authorized by the Constitution.''

If 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'' in this narrow category of cases could be raised by requiring such detention subject to a national security waiver. Further, nothing in section 1032 would require or even permit our military to ``patrol our streets.''

Section 1032 applies, by its very term, 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.

Next quote:

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.

In answer to that, it is not clear what walls the administration thinks the provision builds. Nothing in this 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.

Next quote:

Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and the 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 next quote from the SAP:

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 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 an individual is covered. The President has control over who makes these determinations, how they are made, and when they are made, so the executive branch should not 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.

The next quote from the SAP:

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 that the Executive and Judicial Branches are currently using for detention under 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.

The SAP is wrong. 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.

Also, because the provision addresses only the question of 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 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.

The next quote from the SAP:

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

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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 they 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.

This is the last comment they make on that section:

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 referred to was included to address concerns expressed by the administration. That does not in any way constitute an acknowledgment that the 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 that are included in previous authorization and appropriations acts signed by the President, it is less restrictive. Unlike last year's bill, this 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 on this issue, administration officials have made a single priority request--that the provision be made a 1-year limitation instead of a permanent limitation. And the committee agreed to that change.

Section 1034's ban--

And I am now continuing the quote from SAP--

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 the provisions included in last year's authorization and appropriations acts which were signed by the President. In discussions on this issue, administration officials made a single priority request--that the provision be made a 1-year limitation instead of a permanent limitation. The committee agreed to that change.

The next quote from the SAP:

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 considered views of all relevant agencies.

Section 1035 does not conflict with the Executive order of the interagency 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. The Executive order states that a Gitmo detainee will be released if the interagency process results in a unanimous recommendation for release. But it is silent as to what happens if the process does not result in a unanimous recommendation.

The provision in the 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 nobody can be released without agreement of all of the agencies.

In discussions with the committee, administration officials did not even raise this provision as a priority issue.

Finally, on the Statement of Administration Policy, the SAP:

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 would like to move to my comments on some of the statements of the senior Senator from California.

The first comment of Senator Feinstein that I wish to address is the one where 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.''

On this one, 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 it does not ``limit or expand the authority of the President on 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 from 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, and 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. Mr. President, 1031 does not refer to habeas and in no way limits habeas, nor could it. No American can be held in military detention without habeas review and no non-American can be held in military detention inside the United States without habeas. For non-Americans outside the United States, the bill requires the administration to establish review procedures, including, for the first time, a military judge and access to a military lawyer for the status determination.

The next quote of the Senator from California is the following. Under Section 1032:

..... any noncitizen al-Qaida 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.

Mr. President, Section 1032 does not mandate military custody. It does not

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tie the administration's hands because--and this is critically important--it includes a national security waiver which explicitly allows any suspect to be held 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--

The committee 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 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 Zazi was covered by the provision because we don't know that he was al-Qaida, and in any event there is an exclusion because he is a lawful resident alien 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.

Also, as to this statement that the executive branch would be forced to split up codefendants in the Zazi case, even if he was covered by the provision or in any other case, that is because the provision includes a waiver

that would have allowed him to be held in civilian custody from the outset if the executive branch officials decided to do so and also because 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 are always able to consolidate cases should they decide to do so in the Federal courts.

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 10 cases a year in which the 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-Qaida attacks on American soil have been highly publicized and receive extensive scrutiny, understandably, in Congress. We are not aware of more than half a dozen cases, total, over the last decade. The reason the debate on this issue always seems to come back to the same handful of cases appears to be there only are a handful of cases that are covered by this provision potentially.

In her next quote:

The administration contends 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.

This provision expressly states that the waiver authority may be used to address these concerns and to assure an ally that a suspect will not be held in military custody if transferred to the United States and if that assurance is necessary to obtain that transfer. Administration officials suggested a wording change to preclude misinterpretation of this provision and the committee adopted the very wording proposed by the administration.

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 the transfer to other countries, Section 1033 is less restrictive than current law, which was signed by the President.

The next quote 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 to is not quote `facing a threat that is likely to substantially affect its ability to exercise its control over the individual.'

The same language was included in last year's authorization and appropriations bills that were signed by the President. We added a waiver provision this year to make it easier to transfer detainees. In discussion with the committee, the administration made a single priority request on this issue; that the provision be made a 1-year limitation instead of a permanent limitation, and the committee agreed to that change.

Finally, the last quote of the Senator from California from yesterday that I am 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 that indefinite detention continues to be an appropriate and preferred course. Section 1035 essentially reverses the interagency process created by the President's order.

This was the same allegation made by the statement of administration policy. It is erroneous, and I addressed the answer to that allegation in my remarks a little earlier today, relative to the statement of administration policy, the SAP, so I am not going to comment further. But I would direct everyone back to those comments on the statement of administration policy similar to that statement of the Senator from California, which I addressed at that time.

I appreciate the patience of our Presiding Officer. This was a long statement, but I think it is essential we understand there are issues that need to be debated and should be debated, but there is nothing but confusion created on an issue that is already complex when misstatements are made about what is in a bill of the committee and what is not in the bill of a committee.

The words in the committee bill are words that are clear. They need to be debated, but they should not be exaggerated or misinterpreted. This is an important debate. We had a good debate yesterday, and I expect we will complete this debate on Monday so we can vote on these detention provisions and amendments relative thereto of Senator Udall hopefully on Monday night.

I yield the floor.


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