Leahy: Detainee Provisions In National Defense Authorization Act Deserve Thorough Review

WASHINGTON (Tuesday, Nov. 29, 2011) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) released the following statement Tuesday afternoon in support of a bipartisan amendment to the National Defense Authorization Act to delay any legislative action on detainee matters until the Secretary of Defense, in consultation with other members of the national security team, report to Congress about detention authorities.  Leahy is a cosponsor of the amendment, which has been offered by Senator Mark Udall (D-Colo.)

Leahy has for months expressed concerns with the language concerning the indefinite detention of terrorism suspects included in the National Defense Authorization Act.  The revised version of the bill, which was reported by the Senate Armed Services Committee earlier this month, does not correct the problems identified by Leahy, along with Senate Intelligence Committee Chairman Dianne Feinstein and other senators.

The Secretary of Defense, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation have all sent letters to Congress opposing the provisions.

Leahy has also filed several amendments to remove or amend the detainee provisions in the NDAA.


Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, U.S. Senate Committee On The Judiciary,

On Udall-Webb-Leahy-Feinstein-Durbin-Paul-Wyden Amendment SA 1107 to S.1867,

The National Defense Authorization Act for Fiscal Year 2012

November 29, 2011

The Udall-Webb-Leahy-Feinstein-Durbin-Paul-Wyden amendment would remove the very troubling detention subtitle from the National Defense Authorization Act for Fiscal Year 2012.  I am a cosponsor of this amendment because I believe the detention subtitle is deeply flawed.  We should hear from the Pentagon and other agencies about what they believe to be the appropriate role of the Armed Forces in detaining and prosecuting terrorism suspects.  Unfortunately, the language in the bill before us blatantly disregards the concerns of these agencies. 

Contrary to statements by the bill’s authors, the current version of the detention subtitle, considered by the Senate Armed Services Committee (SASC) on November 15, contains virtually all of the same concerns as the earlier version of the bill. The changes made by SASC do not correct the problems that have been raised by the administration.

Since the SASC marked up the new version, we have received several letters from the administration in opposition to the new language.   Secretary Panetta, Director of National Intelligence Clapper, and FBI Director Mueller, have all written to Senate leaders in opposition of the language.  That means that this language is opposed by each of the agencies whose officers in the field will be directly affected by it.

Just yesterday, Director Mueller wrote that the “legislation introduces a substantial element of uncertainty” into terrorism investigations.  Secretary Panetta wrote that the legislation “may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence.”  Director Clapper wrote that “the various detention provisions … would introduce unnecessary rigidity” into investigations.  And we have a Statement of Administration Policy raising very strong objections to some of these provisions.  I ask unanimous consent to place these letters and the Statement of Administration Policy in the Record. 

So, contrary to what the bill sponsors claim, they have not incorporated the administration’s requests, and the current language does not remove the risk of impeding intelligence investigations or prosecutions of terrorist suspects.

As currently written, the language in this bill would authorize the military to indefinitely detain individuals – including U.S. citizens – without charge or trial.  I am fundamentally opposed to indefinite detention, and certainly when the detainee is a U.S. citizen held without charge.  It contradicts the most basic principles of law that I subscribed to when I was a prosecutor, and it severely weakens our credibility when we criticize other governments for engaging in similar conduct. 

I fought against the Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy.  And I strongly opposed President Obama’s executive order on detention when it was announced last March because it contemplated, if not outright endorsed, indefinite detention.

I am also deeply troubled by the mandatory military detention requirements included in this bill, which I believe dangerously undermine our national security.  In the fight against al Qaeda and other terrorist threats, we should be giving our intelligence, military, and law enforcement professionals all the tools they need – not limiting those tools.  But limiting them is exactly what this bill does.  Secretary Panetta has stated unequivocally that “[t]his provision restrains the Executive Branch’s options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.”  Requiring terrorism suspects to be held only in military custody, and limiting the available options in the field, is unwise and unnecessary.

The language in the detention subtitle of this bill is the product of a process that has lacked transparency from the start.  These measures directly affect law enforcement, detention, and terrorism matters that have traditionally been subject to the jurisdiction of the Senate Judiciary Committee and the Senate Select Committee on Intelligence, but neither committee was consulted about these provisions in July when the bill was first marked up, or earlier this month when it was modified. 

The administration proposed revisions to significantly improve the detention provisions. However, rather than negotiate with the administration in good faith, the Armed Services Committee drafted a new version of the language behind closed doors, and claimed that it had solved all of the issues raised by the administration.  It is obvious from the letters we have received that this is not the case. 

I can see no reason why these provisions were rushed through the Committee without the input of the Defense Department and Federal intelligence and law enforcement agencies that will be directly affected if this language is enacted.  

We must allow a thorough review to determine the legal and practical consequences that these changes will have on future counterterrorism and national security operations to ensure they are not hindered.  That is what the Udall amendment does.  I urge all Senators to support this amendment. 

# # # # #

Press Contact

David Carle: 202-224-3693