Dear Dan:
Thank you for contacting me regarding the detainment and prosecution of unlawful enemy combatants in the fiscal year 2013 (FY2013) National Defense Authorization Acts (NDAA). I appreciate having the benefit of your views.
As you may know, in the FY2012 NDAA, section 1021 affirmed the President's authority to detain enemy combatants who were involved in the September 11, 2001, terrorist attacks or who have ties to al Qaeda or the Taliban. This authority was originally granted to the President under the Authorization of Use of Military Force (AUMF) in September 2001. It is consistent with a Supreme Court ruling and the detention authority assumed by former President George W. Bush. The legislation also included an amendment, which I supported, clarifying that none of the provisions included in section 1021 would affect existing law regarding the detention of individuals, including U.S. citizens.
Additionally, Section 1022 requires the military detainment of a specific subset of individuals affiliated with al Qaeda and involved in plots to attack the United States. This provision excludes U.S. citizens. Both sections 1021 and 1022 indicate that detainees may be held without trial until the end of U.S. hostilities and may be subject to a military commission trial. Sections 1021 and 1022 of the FY2012 NDAA do not affect current law as it pertains to U.S. citizens.
As Congress considered the FY2013 NDAA, issues regarding the detention of enemy combatants were again addressed. The House of Representatives passed its version of the FY2013 NDAA on May 18, 2012. The legislation included a provision to ensure that any action taken to detain individuals in the United States under the 2001 AUMF or the FY2012 NDAA would not infringe on the constitutional rights of the individuals who are entitled to them.
During the week of November 22, 2012, the Senate considered the FY2013 NDAA. On November 29, the Senate voted on an amendment (S. Amdt. 3018) filed by Senators Dianne Feinstein (D-CA), Rand Paul (R-KY) and Susan Collins (R-ME). This provision sought to change current law by amending the Non-Detention Act, 18 U.S. C. § 4001 to prohibit military detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended on U.S. soil who has joined efforts with al Qaeda, the Taliban or another affiliated group unless expressly authorized by Congress. This amendment passed by a vote of 67 to 29 and was included in the Senate's version of the FY2013 NDAA, which passed the Senate on December 4, 2012 by a vote of 98 to 0.
I opposed this amendment for several reasons. I was very concerned that adoption of the amendment would undermine the legal basis relied upon by our military to protect Americans in the war on terror. Adoption of the Feinstein language would have changed current law to require explicit and specific statutory language to meet the requirements of the Non-Detention Act. The Non-Detention Act currently only states that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." In Hamdi v. Rumsfeld, the Supreme Court held that the AUMF, enacted after the September 11, 2001, attacks, qualified as an "Act of Congress" for purposes of the Non-Detention Act. If passed, S. Amdt. 3018, could therefore interrupt and disrupt ongoing current legal efforts because the AUMF does not contain explicit language permitting detention.
In addition, this change would have essentially triggered the "criminalization" of the war on terror. This is troubling. U.S. citizens who join terrorist organizations are not common criminals and should not be treated like them. Doing so would weaken the effort to collect intelligence because enemy combatants would be expressly given the right to withhold information about additional attacks. I am also very concerned that adoption of the Feinstein language would have given rise to additional worrisome consequences. If a U.S. citizen enemy combatant were captured in Afghanistan, or anywhere else outside the United States, he could be lawfully placed in military detention. If, however, such an enemy combatant were to make it to U.S. soil, and was captured before completing a terrorist attack on our homeland, he would be exempt from similar military detention, and could avail himself of rights designed to protect criminals, not enemy combatants. Unfortunately, terrorists are likely to understand this possibility, and could seek the use of Constitutional rights to protect ongoing operations designed to harm Americans.
Some of my colleagues expressed concerns that the existing law was too vague in its definition of the type of person who could be detained. I believe the law is clear. The AUMF includes the authority for the Armed Forces of the United States to detain "covered persons" pending disposition under the law of war. A covered person is defined in the AUMF as a "person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." A person who merely "speaks out" against the government would therefore not fit the definition of "covered persons" under the AUMF.
Furthermore, if a citizen enemy combatant were to be detained, Congress has made the decision that an American citizen may only be tried in our civilian court system and not by a military commission. In addition, all enemy combatants are entitled to a habeas corpus hearing (the right to be heard before a federal judge) and are given an attorney. This process ensures that a detainee can be released if he or she was unlawfully detained (lacked sufficient evidence). Lastly, periodic detention reviews of all detainees held at Guantanamo Bay is required under current law.
Senator Feinstein's provision was not included in the final version of the FY2013 NDAA. However, the bill included a provision to ensure the application of the writ of habeas corpus to citizen enemy combatants. The FY2013 NDAA passed in the House on December 20, 2012, by a vote of 315 to 107 and in the Senate, with my support, on December 21, 2012, by a vote of 81 to 14.
Again, thanks for taking the time to contact me. Your comments help me to represent our state, so please do not hesitate to reach out at any time. For up-to-date information about my work in the Senate, I invite you to visit
www.johanns.senate.gov and sign up for my e-Updates or link to my Facebook and Twitter pages. I look forward to hearing from you in the future.
Very truly yours,
Mike Johanns
United States Senator
