Statement Of Senator Patrick Leahy On Final Passage Of The National Defense Authorization Act For Fiscal Year 2012

The Senate today passed the National Defense Authorization Act for the coming fiscal year.  This vote is historic as Congress has enacted a National Defense Authorization Act every year for the past half century.   I commend the Senate for maintaining this steadfast support for our Armed Services, but this legislation will be remembered for reasons both bad and good.  I regret the decision of the House and Senate conferees to include unnecessary and potentially harmful provisions related to the detention of terrorist suspects.  However, I strongly support measures in the conference report that will empower the National Guard within the Department of Defense, enhance protections for military victims of sexual violence, increase transparency by limiting unnecessary exclusions from the Freedom of Information Act, improve mental health outreach to members of the National Guard and Reserves, and make many other changes to strengthen our national defense and take care of our men and women in uniform.

I continue to strongly oppose the detention related provisions in this conference report, which I believe are unwise and unnecessary.  These provisions undermine our Nation’s fundamental principles of due process and civil liberties, and inject operational uncertainty into our counterterrorism efforts in a way that I believe harms our national security.

I strongly oppose Section 1021 of this conference report, which statutorily authorizes indefinite detention.  I am fundamentally opposed to indefinite detention, and certainly when the detainee is a U.S. citizen held without charge.  Indefinite detention 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. 
Supporters of this measure will argue that this language simply codifies the status quo. That is not good enough.  I am not satisfied with the status quo.  Under no circumstances should the United States of America have a policy of indefinite detention.   I fought against 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.
This is not a partisan issue for me.  I have opposed indefinite detention no matter which party holds the keys to the jailhouse.  I fought to preserve habeas corpus review for those detained at Guantanamo Bay because I believe that the United States must uphold the principles of due process, and should only deprive a person of their liberty subject to judicial review. 

Today, I joined Senator Feinstein, Senator Lee, and others to introduce a bill titled the Due Process Guarantee Act.  This bill will make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention.  In the 2004 Supreme Court opinion in Hamdi v. Rumsfeld, Justice Sandra Day O’Connor stated unequivocally:  “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.”  It is stunning to me that sponsors of the underlying Senate bill argued for the indefinite detention of U.S. citizens at Guantanamo Bay.  We must make clear that our laws do not stand for such a proposition.  We are a Nation of laws, and we must adhere vigilantly to the principles of our Constitution.  I urge all Senators to support this bipartisan effort to protect American values and cosponsor the Due Process Guarantee Act.

I am also deeply troubled by the mandatory military detention requirements included in Section 1022 of this conference report.  In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need – not limit those tools.  But limiting them is exactly what this conference report 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.
Supporters of the conference report claim that concerns about the mandatory military detention section are “red herrings.”  They claim that they have modified the legislation in ways that give the President the flexibility he needs to apply the provisions without impeding investigations or undermining operations in the field.  The changes are totally inadequate.  The Statement of Administration Position (SAP) calls the mandatory military detention section “unnecessary, untested, and legally controversial.”  The SAP goes on to state that “applying this military custody requirement to individuals inside the United States … would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”  

Some supporters of the conference report also claim that the national security waiver provision is “a mile wide” and provides the administration with sufficient flexibility.  The intelligence professionals who work every day to keep our Nation safe disagree.  The Director of National Intelligence, James R. Clapper, wrote to Senator Feinstein that the “detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military, and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks.”

As Chairman of the Judiciary Committee, I am particularly concerned that this provision fails to acknowledge or appreciate the vital role that law enforcement and the courts play in our counterterrorism efforts.  In light of the hundreds of successful prosecutions of terrorism defendants in Federal courts, why would we want to remove this option from the table?  As Jeh Johnson, the Pentagon’s top lawyer, said recently, the Federal courts are “well equipped to handle the prosecution of dangerous domestic and international terrorists,” and “the military is not the only answer.”  I could not agree more.
The implementation procedures required in the legislation are simply not enough to alleviate the potential for problems in the field.  As Secretary Panetta stated in his recent letter to Senator Levin, this provision may “needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.”  No one in the military, intelligence community, or law enforcement has asked for this provision, and rather than strengthening our national security, it makes us less safe.


During floor debate over the Senate bill, FBI Director Mueller wrote that the mandatory military provision would adversely affect the Bureau’s ability to conduct counterterrorism investigations and inject “a substantial element of uncertainty” into its operations.  He argued that the provision fails to take into account “the reality of a counterterrorism investigation.”   The conference report modified the mandatory military detention section to preserve the existing law enforcement and national security authorities of the FBI, but the effect of that new language remains unclear.  At our Judiciary Committee hearing on December 14, the FBI Director stated that the modified text “does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case.”  The FBI Director is particularly concerned with how the legislation will affect the Bureau’s ability to gain the cooperation of suspects.   The FBI has a long and successful track record in the cultivation and use of cooperating witnesses.  But as Director Muller stated, “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.”  I cannot understand why the authors of this conference continue to insist upon language that will undermine the FBI in its use of this critical counterterrorism authority. 

The language in the detention subtitle of this conference report 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 legislation was first considered by the Armed Services Committee, nor was either committee consulted earlier this month when it was modified.  I also 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.   On issues of such national significance, the American people deserve an open and transparent process. 

Supporters of the detention provisions in the conference report continue to argue that such measures are needed because, they claim, “we are a nation at war.”  That does not mean that we should be a Nation without laws, or a Nation that does not adhere to the principles of our Constitution.  We should prosecute those who commit crimes and terrorist acts, and sentence them to long terms in prison.  The Department of Justice has prosecuted more than 440 terrorists since September 11, 2001.  We have a very strong record, and nothing to fear from choosing a course that upholds American values and the rule of law.  That is why I also oppose some of onerous funding and certification restrictions that make it virtually impossible to transfer individuals out of Guantanamo, or to prosecute individuals detained there in Federal courts. 

I also strongly oppose Section 1029 of the conference report, which requires the Attorney General to consult with the Director of National Intelligence and Secretary of Defense before seeking an indictment of certain terrorism suspects.  This provision was not considered or debated by the Senate, and certainly not by the Senate Judiciary Committee, which I chair.  I oppose this provision because it needlessly undermines the authority of the Attorney General, and is an unprecedented infringement on the prosecutorial independence of the Department of Justice. 

Regrettably, the detention language in this conference report remains fundamentally flawed.  The detainee provisions will codify a practice of indefinite detention that has no place in the justice system of any democracy.  They will cause further damage to our reputation as a Nation that respects the fundamental right of due process, harm the efforts of intelligence and law enforcement officials in the field, and may limit their ability to track down terrorists and bring them to justice.  My support for the defense bill should not be construed as support for its detention provisions, which I oppose in the strongest possible terms.

Instead, my support for the bill reflects the inclusion of the National Guard Empowerment Act, a bill I drafted with Senator Lindsey Graham, as an amendment to its underlying text.  The Guard empowerment provisions have been understandably overshadowed by the debate on other, more contentious provisions in the bill, but I nevertheless believe that these provisions will set the stage for dramatic changes to our military force structure in the years to come.

Beginning in May, a new national security consensus quietly formed in Congress around an issue at the core of our national security.  71 senators from both parties steadily added their support to S. 1025, the bill that Senator Graham and I called “Guard Empowerment II.”  The provisions of our bill built upon the first Guard Empowerment bill that I introduced with Senator Kit Bond of Missouri.  That measure became law in 2008 and elevated the Chief of the National Guard Bureau to the rank of four-star general.  This year’s bill had as its headlining provision an effort to make the Chief a statutory member of the Joint Chiefs of Staff.  Despite the vociferous opposition of active component generals in the Pentagon—including all six sitting Joint Chiefs of Staff—a bipartisan Congressional consensus formed around S. 1025 and Guard empowerment.  I was pleased that the Senate included its provisions in our version of the National Defense Authorization Act late last month and that the conferees retained a majority of those provisions in the conference report. 

The new consensus on the National Guard comes as the budget debates of this Congress have fractured the Cold War national security consensus of the last half century.  While those fractures were an inevitable outcome of the end of the Soviet empire, what will replace the Cold War consensus remains unclear.  Some members of congress argue for diplomatic and military retrenchment from every corner of the globe back to Fortress America.  Others believe that we must expand, not shrink, our international footprint.  Yet nearly everyone agrees that budgetary factors must mean a change in the way the Pentagon does business—and that change cannot wait.

The seeds of that change were sown a decade ago.  In the days and weeks following 9/11, the former “strategic reserve” became, of necessity, fully operational.  The National Guard and Reserve components, once a Cold War failsafe, were called into regular rotation in the wars in Iraq and Afghanistan.  Our country simply could not field the forces we needed without calling on the Guard and Reserve.  Simultaneously, America experienced domestic disasters on an unprecedented scale.  In each situation, the President called on the National Guard as the military first responders to help citizens in need.  Today, the metamorphosis from a strategic reserve to an operational reserve is complete.

Yet entrenched bureaucratic interests still resist what most Americans now accept as an accomplished fact.  The Joint Chiefs fought our efforts to bring the Chief of the Guard Bureau into the “Tank” not because they misunderstand the value the Guard and Reserve, but precisely because they fear that value proposition may threaten the size and budget of their active components in the years to come.

Nevertheless the active component must shrink, both as a consequence of our current budgetary reality and to reflect the Constitutional vision the Framers had of a small standing army augmented by a larger cadre of citizen soldiers.  Simultaneously, the Guard and Reserve must grow so that those cuts to the active force can be quickly and easily reversed if the circumstances demand it.  Just a year ago, no one predicted our operations to oust Muammar Qaddafi.  In a world where military needs change day by day, we must not hollow out the force.  To avoid that outcome in a period of austere budgets, we must depend more and more on the National Guard and Reserve.

To that end, the conferees included Section 512 in this defense bill which adds the Chief of the National Guard Bureau to the Joint Chiefs of Staff.  It also reinforces the duties and responsibilities of the Chief as listed in 10 U.S.C. § 10502 in accordance with the listing of responsibilities of the Chief already in that section.  This provision is historic and will dramatically improve the advice that the President and Secretary of Defense receive on matters of national security and the defense budget.

Section 511, “Leadership of the National Guard Bureau,” reestablishes the Vice Chief of the National Guard Bureau as a Lieutenant General and excludes the positions of the Chief and the Vice Chief of the National Guard Bureau from limitations on the number of general and flag officers in the Department of Defense.  Reinstating the Deputy position at the National Guard Bureau will give the Chief flexibility at a time when he sorely needs it and providing a third star for the position will give it more institutional clout.

Section 515 implements the outcomes of a negotiation between the Council of Governors and the Department of Defense by authorizing the President to order the Federal Reserve component to active duty to provide assistance in response to a major disaster or emergency.  In addition to authorizing a reserve forces call-up for domestic disasters and emergencies, it codifies the dual-status Title 10 and Title 32 commander as the usual and customary command relationship for military operations inside the United States, a key victory for federal-state integration of military command and control.

Section 518, “Consideration of Reserve Component Officers for Appointment to Certain Command Positions,” is a modified version of a provision of S. 1025 which would have reserved the positions of Commander, Army North, and Commander, Air Force North, for National Guard officers with an emphasis on the consideration of current and former Adjutants General.  Instead, the section requires that Guard and Reserve officers be considered for these positions whenever they are vacant.

Section 1085, “Use of State Partnership Program Funds for Certain Purposes,” includes a limited authorization of the State Partnership Program which is the major vehicle for the National Guard of the States to participate in international security assistance and capacity building missions at the request of the State Department Chief of Mission and Geographic Combatant Commander.

Last but certainly not least, Section 1080A, “Report on Costs of Units of the Reserve Components and the Active Components of the Armed Forces,” institutes the “similar unit” cost report proposed by S. 1025 with some added detail and while retaining the Comptroller General evaluation of the Department’s report.  That last requirement is important to keep the Department of Defense honest in its assumptions and analysis leading to conclusions about the relative cost of active and reserve units.

The reserve component cost report will undergird efforts by the Senate National Guard Caucus in the years to come.  While it has long been common knowledge that the National Guard and Reserves are cheaper to maintain in dwell than active duty forces, the report will prove that colloquial wisdom and bolster the arguments of the Congress in a future push to reduce the size of the active component as we draw down from Iraq and Afghanistan while growing the size of the reserve components. 

I am also pleased that the conferees included my language to narrow the Freedom of Information Act (“FOIA”) exemption in the bill for Department of Defense critical infrastructure security information.  This improvement adds a public interest balancing test requiring that the Secretary of Defense consider whether the public interest in the disclosure of this information outweighs the Government’s need to withhold the information, when evaluating FOIA requests.  The addition of this measure to the National Defense Authorization Act will help ensure that FOIA remains a viable tool for access to Department of Defense information that impacts the health and safety of the American public.

As I said at the outset, this National Defense Authorization Act will be remembered both for changing our process of detaining and prosecuting suspected terrorists and for empowering the National Guard.  I continue to oppose the changes the Act will make to our counterterrorism legal regime.  But I nevertheless support how the Act will improve the sourcing and fielding of military forces in the years to come.  I will look to fix the former and further improve the latter in future legislation.

Mr. President, I yield the floor.

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