Udall introduces bill to ensure that Americans cannot be held indefinitely without charges

Today, Senator Mark Udall, a member of the Senate Armed Services and Intelligence committees, announced that he has joined Intelligence Committee Chairwoman Dianne Feinstein in introducing the Due Process Guarantee Act of 2011, to clarify that American citizens apprehended inside the United States cannot be indefinitely detained by the military.

The 2012 National Defense Authorization Act, passed earlier this week with the support of President Obama would authorize the indefinite incarceration of terrorism suspects without trial or formal charges, including those suspects who are American citizens. Protests over the bill, and this provision, in section 1031, have already begun around the country.

Udall, who voted for the bill, which passed in final form Thursday, has fought this provision from the beginning, but said he voted for the bill anyway because the spending authorization was vital to the nation’s interest.

Udall said in a press release that The Due Process Guarantee Act of 2011 is a response to the detention provision passed Thursday as part of the National Defense Authorization Act, which could be interpreted to allow American citizens to be detained indefinitely without trial. Udall opposed that provision and fought to remove it from the authorization bill.

The Due Process Guarantee Act amends the Non-Detention Act of 1971 by providing that a congressional authorization for the use of military force does not authorize the indefinite detention – without charge or trial – of U.S. citizens. The bill also codifies a “clear-statement rule” that requires Congress to expressly authorize detention authority over U.S. citizens and lawful permanent residents. The protections are limited to those “apprehended in the United States” and exclude citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.

“There are American citizens who have collaborated with our enemies and participated in attacks against our soldiers and civilians; those traitors should be dealt with,” Udall said in the press release. “But even in our darkest hours, we must 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. Our national security leadership has even said it could make us less safe. Especially given the provisions in the 2012 defense authorization bill, we must clarify that the law unequivocally does not allow the government to detain Americans indefinitely on U.S. soil without trial or charge. And that is the purpose behind this new legislation.”

The Due Process Guarantee Act of 2011 is also co-sponsored by senators Patrick Leahy (D-Vt.), Mike Lee (R-Utah), Mark Kirk (R-Ill.), Rand Paul (R-Ky.), Chris Coons (D-Del.), Dick Durbin (D-Ill.), Kirsten Gillibrand (D-N.Y.), Bill Nelson (D-Fla.), Jeanne Shaheen (D-N.H.), Al Franken (D-Minn.), Tom Udall (D-N.M.), and Claire McCaskill (D-Mo.).

Udall’s concerns with the bill have been steadfast. He made the following statement right after the original vote early this month.

“Tonight, I cast my vote with extremely serious reservations, given my grave concerns about the provisions in this bill regarding military detention. Troubling questions have been raised by the Pentagon and the directors of national intelligence, the FBI and the CIA about how this new policy will impact our ability to track down, capture and bring terrorists to justice. I continue to oppose these provisions.

“After weighing all of the possible options, I decided to vote yes on the overall bill. As a member of the conference committee, I will continue to fight for a consensus that will protect our national security and the constitutional principles on which our nation was founded. The rest of this bill is vitally important to our military. I couldn’t in good conscience vote against legislation that means so much to Colorado and our men and women in uniform fighting in two wars.”

When his initial efforts to fix the bill failed, he sent this letter to Sen. Carl Levin, D-MI, on Dec. 9:

The Honorable Carl Levin
Chairman,
Senate Armed Services Committee
Russell Senate Office Building, SR-228
Washington, DC 20510

Dear Chairman Levin:

As the House and Senate Armed Services Committees meet to negotiate the final Fiscal Year 2012 National Defense Authorization Act in conference, I urge you to give careful consideration to a number of issues related to the detention provisions contained in the Senate bill that I believe could have significant and damaging impacts on our national security and simultaneously Americans’ constitutional freedoms. Although I have no doubt that the provisions were drafted with the best of intentions, I remain deeply concerned about the potential for unintended consequences that could impede our ability to track, investigate, capture, and exploit terrorism suspects. Therefore, I respectfully ask that you seek to address the following points during the conference negotiations and modify the language of the provisions as needed to protect national security and the constitutional liberties of American citizens.

Authorization for indefinite military detention (Section 1031):
Section 1031 contains a number of provisions that have generated significant criticism from the Department of Defense, the Intelligence Community, federal, state, and local law enforcement officials, and civil rights organizations. By authorizing the military to conduct operations that have been within the exclusive purview of civilian law enforcement for over 140 years, this section has the potential to create unnecessary challenges and liabilities for the Department of Defense and other agencies.

Although it has been argued that Section 1031 does not change existing law or practices, such assertions are widely disputed by a range of policy experts, as well as senior national security and law enforcement officials. By expanding the Authorization for Use of Military Force (Public Law 107-40), this provision effectively declares the United States a part of the battlefield. That expansion, in turn, raises a number of unanswered questions that create a significant likelihood for uncertainty and confusion in the national security community. Given that the Executive Branch already has the flexibility and resources necessary to prosecute the war against extremists, this provision could be counterproductive and ultimately harm our national security.

Section 1031 also could be interpreted as permitting the indefinite detention – without trial – of American citizens arrested in the United States. Such actions would conflict with statutory and Constitutional protections and invite legal challenges that could threaten the prosecution of suspected terrorists. Throughout American history, the government has taken actions that have infringed on civil liberties in an effort to protect the United States from attacks; the hindsight of history has proven many of those actions-such as the internment of Japanese-Americans-to be ineffective and ultimately out of step with American values. Al Qaeda and other terrorist organizations may endeavor to attack our citizens and infrastructure, but despite their best efforts, they do not have the capability to weaken our principles or limit our freedoms. Congress should endeavor to stand firm in defending that which our enemies seek to destroy rather than enacting legislation that weakens Constitutional protections and limits the ability of our government to use all of the tools at their disposal to fight and defeat our enemies.

Requirement for military detention (Section 1032):
The requirement in Section 1032 of the Senate NDAA to detain certain members of “al Qaeda, the Taliban, or associated forces” in military custody could present numerous unforeseen technical, logistical, and legal challenges for various national security agencies as they work to prevent terrorist attacks. The lessons learned following the events of September 11th, 2001 made it clear that law enforcement agencies, the intelligence community, and the Department of Defense (DOD) were insulated from one another and lacked the ability to effectively share intelligence and collaborate. Over the course of the last decade, interagency cooperation and collaboration has improved markedly, and as a result, has made it possible to prevent further terrorist attacks. By requiring an inflexible course of action that runs contrary to the advice of our counterterrorism professionals, this provision could significantly impede the efforts of our law enforcement, intelligence agencies, and the Department of Defense as they seek to make split-second decisions and keep us safe.

I understand that the national security waiver in Section 1032 is intended to provide the executive branch with the authority to override the requirement for military detention in certain circumstances; however, I believe this only adds an unnecessary and time-consuming bureaucratic process that could lead to costly delays in decision making and execution of necessary actions. The efforts required to combat persistent and unpredictable terrorist threats are simply incompatible with requiring multiple senior Administration officials to certify a national security imperative in order to preserve the current flexibility they effectively enjoy today.

Finally, there are a number of questions raised in Section 1032 that remain unanswered. For example, given the unconventional nature of our enemies, it is unclear what constitutes membership in al Qaeda, what forces are considered to be associated with al Qaeda, what defines a “coalition partner,” or how it can be determined that an individual is a member of such group or has committed a belligerent act-especially within the United States- without trial. At the very least, the lack of clear due process requirements raises serious questions. It is also unclear how the requirements in Section 1032 would affect the transfer of enemy belligerents currently held at detention facilities other than Guantanamo.

More broadly, it is unclear how enacting the provisions in Section 1032 will benefit U.S. national security. Subsection (a) of Section 1031 affirms that “the authority of the President to use all necessary and appropriate force…includes authority for the Armed Forces of the United States to detain” certain covered persons. In light of the stated intent of the provisions to provide the President with the authority necessary to effectively prosecute actions against al Qaeda and other unspecified terrorist organizations, it seems counterintuitive that the Congress should subsequently mandate actions like those in Section 1032 that effectively tie the hands of the Administration and the national security community.

I have enclosed suggested legislative language that I believe may help to resolve some of the concerns and ambiguity associated with Section 1032. I respectfully ask that you consider this language during your deliberations with conferees.

Sincerely,

Mark Udall

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About the Author

Scot Kersgaard

Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.

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