Friday, September 14, 2012

Pat Toomey on NDAA

Thank you for contacting me about H.R. 1540, the Fiscal Year 2012 National Defense Authorization Act (NDAA), and its military detention provisions. I appreciate hearing from you.

One of my most important responsibilities as a Senator is protecting the American people and defending the United States from our enemies. In spite of our successes against al-Qaeda during the post-September 11 era, we unfortunately still face serious threats from hostile nations and terrorists who want to kill Americans. It is critical that the federal government have the resources and powers to counter these threats, including the longstanding authority to detain enemy combatants who take up arms against the United States and remove them from the battlefield where they can do harm.

I also realize that, at times, there is a natural tension between our national security needs and our civil liberties, which are also vitally important. In such instances, Congress has an obligation to respect constitutional protections and appropriately balance these two aims. After much consideration, I believe that H.R 1540 and its military detention provisions do appropriately reflect this balance and are constitutional. This is why I voted in support of the NDAA, which the Senate passed on December 15, 2011 by a bipartisan majority of 86-13.

First, I should note what the NDAA does not do. H.R. 1540 does not expand existing authorities governing detainees in military custody nor does it allow the military to arrest people within the United States. It also does not permit Americans to be tried by military commissions. In addition, H.R. 1540 includes language added by an amendment offered by Senator Dianne Feinstein (D-CA), with my support which states: "Nothing in this section [the section pertaining to military detainees] shall be construed to affect existing law and authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States."

Second, the NDAA's military detention provisions apply only to those who were 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. The courts have interpreted the term "associated forces" only to cover armed groups assisting the Taliban or Al Qaeda in Afghanistan. The terminology has nothing to do with any other entity. Under these provisions, such enemy combatants can be transferred from civilian to military custody. Such transfers are a reasonable national security measure. For instance, the criminal justice system is not set up to gather and protect intelligence and to give authorities the maximum tools consistent with our laws and values to obtain this information. The bill also gives the administration waiver authority to hold American citizens in civilian custody if it determines that would best serve national security.

Third, as for Americans citizens, the Administration already has the constitutional authority to indefinitely detain them in military custody if they are enemy combatants. This authority goes back to at least World War II, if not earlier. As Supreme Court Justice O'Connor wrote in Hamdi v. Rumsfeld (2004), "there is no bar to this Nation's holding one of its own citizens as an enemy combatant." This 2004 ruling is consistent with the 1942 Supreme Court Ex Parte Quirin ruling that stated, "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of belligerency." In other words, the detention of American citizens who join enemy armed forces and take up arms against their own country has been deemed constitutional through nearly seventy years of Supreme Court jurisprudence.

Fourth, should an American be detained by the military as an enemy combatant, the NDAA maintains legal safeguards and provides due process to ensure that he or she is not being held unlawfully. In particular, H.R. 1549 does not impair his or her constitutional right to challenge the detention in federal district court by petitioning for a writ of habeas corpus. Detainees can also appeal the district court's ruling, conceivably up to the U.S. Supreme Court. Furthermore, enemy combatants who are detained at Guantanamo will receive periodic detention status reviews. An initial review will be completed for all detainees by March 2012. Thereafter, detainees will receive a full review (with hearings) every three years and file reviews every 6 months.

Lastly, we should not overlook why military detention is sometimes required and has been lawfully used by the military in the past to protect Americans. The purpose of detaining enemy combatants for as long as necessary is to keep them from returning to the battlefield and killing Americans there. Many former detainees, when released, have already resumed combat against America. Director of National Intelligence James Clapper testified that the re-engagement rate for transferred Guantanamo terrorist detainees has risen to 27 percent - an all-time high. Additionally, in March 2011, when General James Mattis, the Commander of U.S. Central Command, was questioned about this re-engagement rate, he described it as "a big concern" that "reinforces the enemy."

I understand your views regarding our military detention policies and the NDAA. As I noted earlier, there is a critical and sometimes difficult balance between protecting national security and the American people from the serious threat of terrorism, while at the same time protecting civil liberties under the constitution. This is why my decision to support the NDAA was a difficult one and required much consideration. Moving forward, it is important that Congress maintain vigorous oversight over the Administration's use of military detention to ensure that these powers under the NDAA are only being used when lawful and do not undermine the constitutional protections we all enjoy.

Thank you again for contacting me. I appreciate your thoughts on this important issue. Please do not hesitate to contact me in the future on other matters of concern.


Pat Toomey

U.S. Senator, Pennsylvania