Mr. President, today I rise to express my deep concern that the 2012 National Department of Defense Authorization Act provisions pertaining to detainee treatment fail to strike the appropriate, important balance between national security, due process, and civil liberties. Sections 1021, 1022, and 1023 are the latest in a series of legislative proposals that provide ever-narrowing latitude for dealing with terrorism suspects, whether in the U.S. or abroad.
I am concerned, Mr. President, that these provisions take us one small, but significant, step down the road towards a state in which ordinary citizens live in fear of the military, rather than the free society that has marked this great nation since the Bill of Rights was ratified 220 years ago, in 1791.
The new detention authorities thrust upon our military in this bill are an assault on our civil liberties and do not belong on our books. They were not requested by the Pentagon, in fact they have been resisted by the President, the Secretary of Defense, the Attorney General, and the directors of National Intelligence and the FBI. They do not make us safer and, to the contrary, they will create dangerous confusion within our national security community.
Under these sections, a terrorism suspect must be remanded to U.S. military custody, even when that suspect presents no imminent threat to public safety and is being held under suspicion of committing a U.S. crime. The suspect may be held indefinitely. Indeed, if the suspect is transferred to Guantanamo, it may be a practical reality that the suspect must be held indefinitely, thanks to the onerous certification requirements contained in Section 1023. If not sent to Guantanamo, the suspect may be rendered to a foreign power, where he may be subject to coercive interrogation, torture, or death. Or, the individual may simply remain in custody of our own military, waiting for the cessation of an endless conflict against an idea.
Mr. President, as my colleagues from Vermont and Oregon, from Colorado and California, have already said so eloquently, these provisions reflect an unfortunate and unwise shift away from the current law, in which the criminal justice system is presumed to be sufficient for those who commit crimes on U.S. soil. No system is perfect, but the federal criminal justice system is considered by many around the world to be the gold standard for fairness, transparency and reliability. Since 9/11, the civilian criminal process has been successful in securing convictions and lengthy sentences against hundreds of terrorism suspects.
This is compared to just six convictions in military tribunals, and two of these individuals are walking free today. A third, Ibrahim al Qosi, was convicted of being a Taliban fighter. Under his sentence of two years, he would be due to be released next summer. But when he serves his sentence, he likely will not be released. Instead, he will be detained until our undefined hostilities against Islamic extremism and terrorism conclude. In other words, he will be detained indefinitely. Criminal process like this is little better than no process at all. It ought to be reserved for the rarest cases where the civilian criminal justice system is not suitable. It should not be made the new standard.
If we are going to short-circuit the criminal justice system, we ought to at least have good reason to do so. At a minimum, I would expect the President, the Attorney General, the Secretary of Defense, or the Director of National Intelligence to make the case that military custody is the only way to appropriately handle terrorists. But that’s not what happened here. No one is calling for these new powers. They are being thrust upon our military.
President Obama has said that these provisions will hinder his ability to prosecute the campaign against terrorists. The Attorney General and the Director of National Intelligence have said that these provisions threaten to undermine the collection of intelligence from suspected terrorists.
They don’t want these authorities, Mr. President.
The military doesn’t want them either. The Secretary of Defense has said that the provisions will unnecessarily complicate its core mission of protecting our nation and projecting military force abroad. These provisions do not make sense as a matter of defense policy, and, because the meaning of some of the key terms is deliberately unclear, we can’t even predict the precise impact that they will have.
In the best-case scenario, we will end up in a situation with minor changes to an existing detainee policy that has already proven to inspire and sustain this and the next generation of extremists who wish to destroy this country. In the worst-case scenario, we make several significant changes that hinder our ability to find and destroy this current generation of extremists.
I do not accept the underlying assumption of these unnecessary new provisions that the threat the United States faces is one that can be defended by more guns, taller walls, and deeper holes that we “disappear” people into. In fact, defense from the threats of today and tomorrow — called “asymmetric” because they do not attempt to meet us on the battlefield with equal capabilities — requires a new paradigm, the concept of defense in depth. To address asymmetric threats, including networks of extremists determined to carry out act of terrorism, law enforcement and the Defense Department must work cooperatively to protect U.S. interests using their respective strengths in authorities and levels of response.
Instead of strengthening our ability to confront asymmetric threats, these unwelcome new authorities instead reinforce the philosophy that the military is the only preeminent institution of national security, with law enforcement relegated to a limited support role. That may have been an appropriate philosophy for the world in 1961, but it did not help us in 2001, and will not help us in 2021. These new authorities do nothing to change that and will not make us any safer. The only effective comprehensive model for national security is one that strengthens both our law enforcement and military to fight threats within their respective areas of expertise.
At the local level, it is often difficult to distinguish whether an individual in possession of bomb-making components is a hardened terrorist coordinating with al-Qaeda; is a troubled, dangerous, but affiliated teenager; or is completely innocent of any crime at all. In the rush to “repel borders” at the early stages of investigations, mistakes will be made. We need to make sure that these mistakes do not overrun the constitutional protections we all enjoy as Americans.
It is true, as supporters of these provisions have argued, that Section 1021 contains a limitation that the authorization of force does not include the right to hold citizens in violations of their constitutional rights. That is some comfort, but not enough. As I sat in the presiding chair during debate over this bill, I heard my colleagues argue that we are in a time of war and that, during times of war, U.S. citizens have no constitutional protections against being treated as a prisoner of war. Even if there was broad agreement about the constitutional protections citizens enjoy against extrajudicial killing or indefinite detention, who will enforce them? Under this bill, that task would seem to be left to the President and to the military. Were my life or liberty at stake, I would want the benefit of an independent judiciary. So, too, I think would the vast majority of my fellow citizens.
Mr. President, we are in conflict against terrorists. I do not doubt or dispute that. But this is not the first time that has been the case. During the beginning part of the last century, anarchists committed a string of bombings, usually targeting police officers or civilians. In 1901, an anarchist assassinated President McKinley. In the First Red Scare during the early part of the century, a plot was uncovered to bomb 36 leaders of government and industry. During the 1960s and 70s, the Weather Underground declared as its mission to overthrow the U.S. government. Members planted bombs in the Capitol, the Department of State and the Pentagon.
Each of these threats, and others, has before placed an existential fear in the minds of Americans. We have not always acted well. The Sedition Act of 1918, the internment of Japanese Americans during the Second World War, and the House Un-American Activities Committee and Hollywood blacklisting following the war are three notable examples of action, taken in the face of severe threat, which now the vast majority of Americans look back upon with deep regret.
As technology has advanced, so has the ability of the government to reach into our lives, whether through unseen drones and hidden electronic surveillance, omnipresent cameras and advanced facial recognition programs, or unfettered access to our telephone and Internet records.
The advance of technology, however, is not justification for the retreat of liberty — especially not when we have at our disposal a criminal justice system that is up to the task of keeping us safe.
Mr. President, I plan to vote for the Conference Report of the National Defense Authorization Act because I agree with much of what is within it. During a time of war, we cannot allow our military to go unauthorized. We cannot allow our troops to go unpaid. The NDAA provides oversight of and spending limitations for the military. It elevates the head of the National Guard to the Joint Chiefs level, which is necessary to ensure that military leadership adequately considers the unique reserve capacity role now filled by the Guard. The bill will also begin to address the inability of Customs and Border Patrol agents to share information necessary to identify military and other counterfeits at our borders.
Though we weren’t able to remove the dangerous and counterproductive provisions contained in Sections 1021, 1022 and 1023 from the NDAA today, we are not done trying. I will continue to work with my colleagues to ensure that we maintain the balance between security and liberty.