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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 to speak on the National Defense Authorization Act conference report we will be voting on later today.

First, I wish to acknowledge that Chairman Levin and Ranking Member McCain have worked tirelessly to craft the Defense authorization bill to provide our Armed Forces with the equipment and services they need to keep us safe. I thank them, their staffs, and all my colleagues for their diligence and dedication to this important work.

I also come to the floor because I want to share, as I have over the last few weeks, the concerns that many Americans--and especially the people I represent in Colorado--have expressed over the last few weeks about the detainee provisions that have been included in the Defense authorization bill. I wish to make it clear that I still have very strong concerns about these provisions, especially because they have been presented as a solution to alleged gaps that exist in our counterterrorism policy.

It is my strong belief that our military men and women, law enforcement officials, and counterterrorism professionals have done an outstanding job since 9/11 to keep our Nation safe. For 10 years we have killed, captured, and prosecuted terrorists, and I believe--in fact, I know--our system has been successful.

The professionals whom I just mentioned, who are in charge of waging this battle to keep us safe, agree that the detainee provisions are of real concern. That includes the Secretary of Defense, the Director of National Intelligence, and the Directors of both the FBI and CIA.

In speaking to these same concerns that I continue to hold, along with the people just mentioned, the administration has stated:

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.

I know many agree, especially Coloradans, who have contacted me in very impressive and large numbers. They believe, as I do, that these detention provisions could endanger our national security and that we ought to take a hard look at where we are heading.

I strongly objected to these detention provisions back in the summer when the Armed Services Committee first considered them. In fact, I was the only member of the committee who cast a ``no'' vote during the committee markup. I felt a little lonely at that point in time, but I think my judgment has been recognized by the outpouring of concern about where we may be headed.

Let me talk about what they do. The provisions could authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism, without charge, even those captured in the United States. The point I have tried to make over and over again is that this concerns each and every one of us. If these provisions deny American citizens their due process rights under a nebulous, new set of directives, it would not only make us less safe, but it would serve as an unprecedented threat to our constitutional liberties.

Senator Graham, my friend from South Carolina, has stated that if an American citizen takes up arms against the United States, he or she could be treated as an enemy combatant. I agree. However, the dangerous part of that proposition is as follows: How do we go about determining who those individuals are? No matter how serious the charge may be, the Constitution requires us to provide our citizens with due process before they are incarcerated--especially indefinite incarceration. If we start labeling our citizens as enemies of the United States without any due process, I think we will have done real damage to our system of justice in our country, which is admired all over the world.

My colleagues and I all agree that we have to take every action necessary to keep our Nation safe.

But what separates us--what makes America exceptional--is that even in our darkest hours, we ensure that our constitution prevails.
We do ourselves a grave disservice by allowing for any citizen to be locked up indefinitely without trial, no matter how serious the charges against them. Doing so may make us feel safer, it may be politically expedient, but we risk losing the principles of justice and liberty that have kept our Republic strong, and it does, frankly, nothing to make us safer. No terrorist, no weapon, no physical threat is powerful enough to destroy who we are as a people, and that is why we have to remain diligent in ensuring we hold true to the principles that make our country great.

I took note of this very principle in a powerful piece written by two retired four-star Marine Corps generals, General Krulak and General Hoar.

Mr. President, I ask unanimous consent to have printed in the Record the article written by these two generals.

There being no objection, the material was ordered to be printed in the Record, as follows:


Mr. UDALL of Colorado. Mr. President, these generals put it right to the point we all need to hear: Our ideals are assets, not liabilities. In that spirit, interestingly enough, we had a very robust debate about these detention provisions, and it bolstered my faith we could continue to have great and substantive debates in this body. Because of the concerns that were raised and serious questions that were presented about the provisions, we were able to secure some improvements that may reduce some of the grave concerns I have outlined here.

I see my good friend from Illinois, who I know is going to speak and who shares some of my concerns, so let me touch on a couple of the adjustments that have been made.

Senator Feinstein's amendment clarified that detainee provisions are not to be interpreted ``to affect existing law or authorities relating to the detention of United States citizens.''

I was a member of the conference committee on this bill, and during the conference committee negotiations resulted in a clarification that was made to ensure these provisions are not to be interpreted to ``affect the existing criminal enforcement and national security authorities of the FBI or any other domestic law enforcement agency.'' These were helpful changes and, hopefully, will prevent the undermining of our constitutional liberties and the disruption of domestic counterterrorism efforts.

However, while I was pleased my colleagues were willing to acknowledge the language presented serious problems and left many questions unanswered, I still remain concerned about the detention provisions. Making changes to the law that have serious ramifications for our Constitution and our national security deserve serious thought and deliberation. Yet to this day we have not had a single hearing on these matters. Hearings would allow us to understand and mitigate the concerns of national security experts such as FBI Director Mueller. Director Mueller testified yesterday in front of the Senate Judiciary Committee and said that because of the requirements of this language, ``the possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.''

One of our primary goals in these cases is to gain actionable intelligence, and the FBI is very good--in fact, they are unbelievably good--at using a variety of techniques to gather the information we need--techniques, by the way, that fit within the Bill of Rights and the Uniform Code of Military Justice. Some of my colleagues believe that intelligence will be lost if a suspect receives a Miranda warning, but now we may be jeopardizing entire cases by adding new layers of bureaucracy and questionable legal processes.

These detention provisions, even as they are amended, will present numerous constitutional questions that the courts will inevitably have to resolve, and the provisions will present logistical problems that our national security experts will have to wade through. It sure feels to me as though these changes are being forced on an already nimble and effective counterterrorism community against their warnings, and I remain unconvinced of their benefit. I continue to believe the best course of action would be to separate these detention provisions from the Defense authorization bill so we can take our time, speak to experts in the field, and make sure we are effectively balancing our counterterrorism needs and the constitutional freedoms of American citizens. Most importantly, we need to understand and we need to ensure we are not damaging our national security. That is why I made it clear in signing the conference report that I do not support the two flawed detention provisions, sections 1021 and 1022.

All of that said, the Senate has a solemn obligation to our men and women in uniform to pass a Defense Authorization Act. As a proud member of the Senate Armed Services Committee, I understand the importance of this bill for our military and for their families, and while I continue to have serious reservations about the detention provisions and sought to separate them from the Defense authorization bill, we face a single vote on the entirety of the Defense bill, which includes the amended detention provisions. That is not how I wanted to proceed, but that is the choice in front of us.

For those who joined me in voicing opposition to the detention provisions, I thank you. We fought to ensure that the rights of American citizens are not trampled with ease, and we joined the counterterrorism community to demand the full use of existing tools to fight the enemy. We showed that such a debate was worth having and secured revisions to the language that will now help us continue the important work of ensuring that both our Constitution and our national security remain protected.

Although I intend to vote for final passage of the conference bill, I want to make clear I do not fully support the bill. I sincerely believe this debate is not over and there is much work left to do. Over the coming months and years, as a member of the Senate Armed Services Committee, I intend to hold this administration, and any further administration, accountable in the implementation of these provisions.
I will also push the Congress to conduct the maximum amount of oversight possible as it relates to these provisions. We must apply a heightened level of scrutiny to ensure that what passes the Senate today does not deny U.S. citizens their due process rights and does not impede our counterterrorism efforts by hamstringing our military, the FBI, the CIA, or others who keep us safe. If these provisions stray in any way from that standard, I will be the first to demand hearings and changes to the law.

In conclusion, I believe we owe it to our men and women in uniform to pass a Defense authorization bill, but we also owe the American people a full and honest debate about our national security strategy that keeps us both safe and protects this document--the Constitution--we all have taken an oath to uphold.

With that, I yield the floor.


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