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"Please read the damn bill" (Senate debate on the NDAA)

Raffaela Wakeman
Monday, November 21, 2011, 2:31 PM
Having now returned from my undisclosed location, here's a transcript of the Senate floor debate on the NDAA. The Senate debated the bill on Thursday and Friday. This transcript, helpfully includes only those portions of the debate that relate specifically to the detention provisions. Senate Armed Services Committee Chairman Carl Levin introduced as follows:

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Having now returned from my undisclosed location, here's a transcript of the Senate floor debate on the NDAA. The Senate debated the bill on Thursday and Friday. This transcript, helpfully includes only those portions of the debate that relate specifically to the detention provisions. Senate Armed Services Committee Chairman Carl Levin introduced as follows:
   Mr. LEVIN. Mr. President, on behalf of the Senate Armed Services Committee, I am pleased to bring S. 1867, the National Defense Authorization Act for fiscal year 2012, to the Senate floor. The Armed Services Committee approved the bill by a unanimous vote of 26 to 0. This is the 50th consecutive year that our committee has reported a defense authorization act. Every previous bill has been enacted into law.    I would like to thank all of the members and the staff of the Senate Armed Services Committee for the commitment they have shown to the best interests of our men and women in uniform as we have developed this legislation. Every year, we take on tough issues, and we work through them on a bipartisan basis consistent with the traditions of our committee. I particularly thank Senator McCain, our ranking minority member, for his strong support throughout the process. The unanimous committee vote in favor of this legislation would not have been possible without his cooperation and support.    We were delayed in getting this year's bill to the Senate floor by two issues that have arisen since the time the Armed Services Committee approved the first version of this bill, S. 1253, in late June. …    [T]he administration and others expressed misgivings about the detainee provisions in the initial bill, although the provisions in our initial bill represented a bipartisan compromise that was approved by the committee on a 25-to-1 vote. Many of these concerns were based on misinterpretations of the language in that bill; nonetheless, we have worked hard to address these concerns. …  Mr. LEVIN. Second, the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill first modifies section 1031 of the bill, as requested by the administration, to assure that the provision that provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 authorization for use of military force, the AUMF, to make sure that those provisions and that statutory basis are consistent with the existing authority that has been upheld in the courts and neither limits nor expands the scope of the activities authorized by the AUMF.    It also modifies sections 1033 and 1034 of the bill, as requested by the administration, to impose 1-year restrictions rather than permanent limitations on the transfer of Gitmo detainees to foreign countries and on the use of Department of Defense funds to build facilities in the United States to house detainees who are currently at Gitmo.    We were unable to agree to the administration's proposal to strike section 1032, the provision that requires military detention of certain al-Qaida terrorists subject to a national security waiver. We did, however, adopt a number of changes to the provision. In particular, we modified the provision so that it clarifies that the President gets to decide who makes the determinations in coverage, how they are made and when they are made, ensuring that executive branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.    Second, we clarify that there is no interruption of ongoing surveillance and intelligence-gathering activities or of ongoing law enforcement interrogation sessions. There have been misstatements, misimpressions, and misinterpretations of the provisions of our bill relative to those issues. We clarify them to make sure it is clearly understood by this body and the American people that--repeating, it is the executive branch, it is determined by the President, the people he appoints who will make determinations of coverage, how they are made, when they are made, so that it ensures the flexibility that the executive branch wants to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.    It has been suggested that ongoing surveillance and intelligence-gathering activities by law enforcement people would be interrupted, or that their interrogation might be interrupted. It is very explicitly clear in this bill that there is no such interruption, there is no such interrogation session interruption or surveillance interruption or intelligence-gathering activities interruption. The process to make sure that doesn't happen is in the President's hands.    The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other short-term basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here.    Contrary to some statements I have seen in the press, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the administration to codify existing authority that was adopted by both the Bush administration and the Obama administration and that has been upheld in the Federal courts.    Moreover, the bill requires for the first time that any detainee who will be held in long-term military custody anywhere in the world would have access to a process that includes a military judge and a military lawyer.    I want to repeat that. For the first time, this bill provides that, in determining a detainee's status, the detainee will have access to a lawyer and to a military judge. That is not the case now. Nor would the bill preclude the trial of terrorists in civilian courts, as some have erroneously asserted. As a matter of fact, it is the contrary. The bill expressly authorizes the transfer of any military detainee for trial in the civilian courts at any time. An amendment that eliminated that authority was defeated in the Armed Services Committee on a bipartisan 19-to-7 vote during the markup of the initial bill.    The bill would not require the interruption of ongoing surveillance operations or ongoing law enforcement interrogations of suspected terrorists, as some have incorrectly asserted. The opposite is the case, as I have said, because we have included language in the bill that specifically precludes those possibilities.    The bill also provides that the President, not Congress, will decide who makes determinations of whether a detained person is in the narrow class covered, and the President will decide how and when these determinations are made.    The bill would not require that al-Qaida terrorists who are captured on American soil be transferred to military custody, because it includes an easily effectuated national security waiver. With this waiver authority, executive branch officials may keep any detainee in civilian custody or move any detainee to civilian custody if they choose to do so.    That provision provides the executive branch flexibility to choose the most appropriate course of action for al-Qaida terrorists whom we capture, including detention in civilian custody. That was the intent of the original language, and it has been clarified in the bill before us. I recognize that the administration remains unsatisfied with this provision, but we have gone a long way to address their concerns.
A few other highlights:
  • Senator John McCain's discussion of Obama's campaign promise to close Guantanamo, and the Administration's efforts to try KSM in a civilian court appears on page 22.
  • Senator Saxby Chambliss's claims that we could have "gained very actionable intelligence from either" Osama bin Laden or Anwar Al-Aulaqi appears on page 24.
  • Senator Lindsey Graham's colorful support of the bill and his back-and-forth with Senators McCain and Levin begins on page 39; his intreaty to "please read the damn bill" appears on page 56. He summarizes the two detention provisions on page 65 as follows: "So in summary, 1032, the military custody provision, which has waivers and a lot of flexibility, does not apply to American citizens, and 1031, the statement of authority to detain, does apply to American citizens. It designates the world as the battlefield, including the homeland."
In his comments, Senator Levin alludes to a statement he would be releasing clarifying the amendments. That statement, now public, is available here. If you would like to take Senator Graham's advice, you can actually read the bill here.

Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.

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