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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

Location: Washington, DC



Mr. UDALL of Colorado. Mr. President, I rise this morning to speak in favor of amendment 1107. First, let me say that I know how hard Chairman Levin and Ranking Member McCain have worked to craft a Defense Authorization Act to provide our Armed Forces with the equipment, services, and support they need to keep us safe. I also thank my colleagues from the Armed Services Committee, a number of whom I see on the floor this morning, for their diligence and dedication to this important work.
With that, let me turn to the amendment itself. I want to start by thanking the cosponsors of the amendment. They include the chairwoman of the Intelligence Committee, Senator Feinstein; the chairman of the Judiciary Committee, Senator Leahy; and Senator Webb, a former Secretary of the Navy, someone whom I think we all respect when it comes to national security issues.

I also point out that this amendment is bipartisan. Senator Rand Paul joined as a cosponsor this morning and gave a very compelling floor speech a few minutes ago. Senators Wyden and Durbin have also recently cosponsored it. I recognize their leadership as well.

Let me turn to the amendment itself. A growing number of our colleagues have strong concerns about the detainee provisions in this bill. At the heart of our concern is the concern that we have not taken enough time to listen to our counterterrorism community and have not heeded the warnings of the Secretary of Defense, Director of National Intelligence, and the Director of the FBI, who all oppose these provisions. Equally concerning, we have not had a single hearing on the detainee matters to fully understand the implications of our actions.

My amendment would take out these provisions and give us in the Congress an opportunity to take a hard look at the needs of our counterterrorism professionals and respond in a measured way that reflects the input of those who are actually fighting our enemies.

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. My amendment would then ask for hearings to be held so we can fully understand the views of relevant national security experts.

In other words, I am saying let's ask our dedicated men and women who are actually fighting to protect Americans what they actually need to keep us safe. This is a marked departure, in my opinion, from the current language in the bill, which was developed without hearings, and seeks to make changes to the law that our national security professionals do not want and even oppose, as I pointed out.

Like other challenging issues we face here in the Senate, we should identify the problem, hold hearings, gather input from those affected by our actions, and then seek to find the most prudent solution. Instead, we have language in the bill, which, while well intended--of that there is no doubt--was developed behind closed doors and is being moved rather quickly through our Congress. The Secretary of Defense is warning us we may be making mistakes that will hurt our capacity to fight terrorism at home and abroad. The Director of National Intelligence is telling us this language will create more problems than it solves. The Director of the FBI is telling Congress these provisions will erect hurdles that will make it more difficult for our law enforcement officials to collaborate in their effort to protect American citizens. And the President's national security staff is recommending a veto of the entire Defense authorization bill if these provisions remain in the bill.

With this full spectrum of highly respected officials and top counterterrorism professionals warning Congress not to pass these provisions, we are being asked to reject their advice and pass them anyway--again, without any hearings or further deliberation. I don't know what others think, but I don't think this is what the people of Colorado expect us to do, and it is not how I envision the Senate operating.

The provisions would dramatically change broad counterterrorism efforts by requiring law enforcement officials to step aside and ask the Department of Defense to take on a new role they are not fully equipped for and do not want. And by taking away the flexible decisionmaking capacity of our national security team, by forcing the military to now act as police, judge, and jailer, these provisions could effectively rebuild walls between our military law enforcement and intelligence communities that we have spent a decade tearing down.

The provisions that are in the bill--to me and many others--appear to require the DOD to shift significant resources away from their mission to serve on all fronts all over the world. This has real consequences, because we have limited resources and limited manpower. Again, I want to say that I don't think we would lose anything by taking a little more time to discuss and debate these provisions, but we could do real harm to our national security efforts by allowing this language to pass, and that is exactly what our highest ranking national security officers are warning us against doing.

You will note I am speaking in the broadest terms here, but I did want to speak to one particular area of concern, to give viewers and my colleagues a sense of what we face.

The provisions authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism--even those captured here in our own country, in the United States--which I think should concern each and every one of us. These provisions could well represent an unprecedented threat to our constitutional liberties. Let me explain why I think that is the case.

Look, I agree if an American citizen joins al-Qaida and takes up arms against the United States that person should be subject to the same process as any other enemy combatant. But what is not clear is what we do with someone arrested in his home because of suspected terrorist ties. These detainee provisions would authorize that person's indefinite detention, but it misses a critical point. How do we know a citizen has committed these crimes unless they are tried and convicted? Do we want to open the door to domestic military police powers and possibly deny U.S. citizens their due process rights? If we do, I think that is at least something that is worthy of a hearing, and the American people should be made aware of the changes that will be forthcoming in the way we approach civil liberties. But since our counterterrorism officials are telling us these provisions are a mistake, I am not willing to both potentially limit our fight against terrorism and simultaneously threaten the constitutional freedoms Americans hold dear.

As I begin my remarks, I hope I have projected my belief 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. To be perfectly frank, I am worried these provisions will disrupt our ability to combat terrorism and inject untested legal ambiguity into our military's operations and detention practices.

We will hear some of our colleagues tell us not to worry because the detainee provisions are designed not to hurt our counterterrorism efforts. We all know the best laid plans can have unintended consequences. While I am sure the drafters of this language intended the provisions to be interpreted in a way that does not cause problems, the counterterrorism community disagrees and has outlined some very serious real world concerns. Stating in the language there will not be any adverse effects on national security doesn't make it so. These are not just words in a proposed law. And those who will be chartered to actually carry out these provisions are urging us to reject them. Shouldn't we listen to their serious concerns? Shouldn't we think twice about passing these provisions?

I have not received a single phone call from a counterterrorism expert, a professional in the field, or a senior military official urging us to pass these provisions. We have heard a wide range of concerns expressed about the unintended consequences of enacting these detainee provisions but not a single voice outside of Congress telling us this will help us protect Americans or make us safer.

In addition to our national security team, which is urging us to oppose these provisions, other important voices are also asking us to stop, to slow down, and to consider them more thoroughly. The American Bar Association, the ACLU, the International Red Cross, the American Legion, and a number of other groups have also expressed a wide range of serious concerns.
Again, I want to underline, although the language was crafted with the best of intentions, there are simply too many questions about the unintended consequences of these provisions to allow them to move forward without further input from national security experts through holding hearings and engaging in further debate.

I am privileged to be a member of the Armed Services Committee. I am truly honored. 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 in depth what is proposed and, at a later date, include any applicable changes in the law. It is not only the right thing to do policywise, it may very well protect this bill from a veto. The clearest path toward giving our men and women in uniform the tools they need is to pass this amendment and then send a clean National Defense Authorization Act to the President.

In the Statement of Administration Policy, the President says the following--and I should again mention in the Statement of Administration Policy there is a recommendation the President veto the bill.

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.

These are striking words. They should give us all pause as we face what seems to be a bit of a rush to pass these

untested and legally controversial restrictions on our ability to prosecute terrorists.

I want to begin to close, and in so doing I urge my colleagues to think about the precedent we would set by passing these provisions. We are being told these detainee provisions are so important we must pass them right away, without a hearing or further deliberation. However, the Secretary of Defense, at the same time, along with the Director of National Intelligence and the Director of the FBI, are all urging us to reject the provisions and take a closer look. Do we want to neglect the advice of our trusted national security professionals? I can't think of another instance where we would rebuff those who are chartered with keeping us safe.

If we in the Congress want to constrain the military and give our servicemembers new responsibilities, as these provisions would do, I believe we should listen to what the Secretary of Defense has had to say about it. Secretary Panetta is strongly opposed to these changes, and I think we all know before he held the job he has now, Secretary of Defense Panetta was the Director of the CIA. He knows very well the threats facing our country, and he knows we cannot afford to make any mistakes when it comes to keeping our citizens safe. We have to be right every time. The bad guys only have to be right once.

This is a debate we need to have. It is a healthy debate. But we ought to be armed with all 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 and significant changes in how we interrogate and prosecute terrorists. As I have said before, it concerns me we would tell our national security leadership--a bipartisan national security leadership, by the way--that we will not listen to them and that Congress knows better than they do. It doesn't strike me that is the best way to secure and protect the American people.

That is why I filed amendment No. 1107. I think my amendment is a commonsense alternative that will protect our constitutional principles and beliefs while continuing 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. It is straightforward, it is common sense, and I urge my colleagues to support the amendment.

Mr. President, I thank you for your attention, and I yield the floor.


Mr. UDALL of Colorado. The Senator from South Carolina is broadly admired in the Senate. If I am ever in court, I want him to be my lawyer.

I would point out, however, that what I am proposing wouldn't destroy the system we have in place--a system, by the way, that has resulted in the convictions of numerous terrorists with life sentences. What I am asking is to listen to those who are on the frontlines who are fighting against terrorists and terrorism who have said they have concerns about this new proposal and would like a greater amount of time to vet it and consider it.

I yield 8 minutes to the Senator from Illinois.


Mr. UDALL of Colorado. Mr. President, I want to clarify for the record before I recognize Senator Webb for 5 minutes that some here have claimed that the Supreme Court's Hamdi decision upheld the indefinite detention of U.S. citizens captured in the United States.

It did no such thing. Hamdi was captured in Afghanistan, not the United States. Justice O'Connor, the author of the opinion, was very careful to say that the Hamdi decision was limited to ``individuals who fought against the United States in Afghanistan as part of the Taliban.'' I think that is important to be included in the Record.

I yield to Senator Webb for 5 minutes.


Mr. UDALL of Colorado. Mr. President, I thank, again, the ranking member and the chairman of the Armed Services Committee for their hard work.

I want to close with a couple points. I want to, in the interest of clarifying the record, point out, on the heels of the chairman's comments about the Statement of Administration Policy, when it comes to section 1031, the full statement reads:

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.

Second, there are questions that continue to be raised. I want to mention section 1033. The chairman said it is only section 1032 that is the focus of our attention, but there have been questions raised about section 1033. There is language in section 1033 that makes it clear that--we think it makes it clear that there is a provision that requires any receiving country is taking actions ``to ensure that the [detainee] cannot engage ..... in any terrorist activity.'' This is if we are releasing or transferring somebody who is detained.

I was in Afghanistan recently, at Bagram prison. We have 20,000 detainees there. There are some who believe section 1033 would restrict us from releasing those prisoners at Bagram as we begin to draw down our efforts in Afghanistan. That is just one of the many questions that are asked.

Finally, I listened to the passion that my friend from South Carolina Senator Graham exhibited on the Senate floor. We are all in this together. We are going to prevail. The bad guys in the world are not going to win. We do have, however--and this is what makes our country strong--different points of view on how we prosecute this war. I believe the intent of what is being suggested in these provisions is well and good and at the highest level. But there are many people we trust and respect--including the FBI Director, the Secretary of Defense, the Secretary of Homeland Security--who believe what will happen, if we interpret the language, will not actually reflect our intent.

Therefore, let's set this aside, pass the NDA, send it to the President, and take the next 90 days to hold hearings and thoroughly vet what is in this set of provisions. I will be the first person to come to the floor if all of those individuals and our own experts tell us this is the right way to proceed, to say: Let's put this into the law.

But let's not rush to take these steps. We have something that is working. We have over 300 terrorists who have been prosecuted through our civil system who are in jail, many of them for life sentences, sentences that will outlast their lifespans. Let's not fix something that is not broken until we really understand what the consequences are.

I thank, again, my colleagues on the Senate Armed Services Committee. This has been a helpful and important debate.

I yield the floor.


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