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Transcript of House Debate on the NDAA

Raffaela Wakeman
Friday, December 16, 2011, 10:46 AM
You can read the detention-specific portions of the December 14th House debate on the conference report here. Here are some highlights: Congressman Alcee Hastings (D-FL)  presented a strident opposition to the provisions. His comments begin right on page 1:
This legislation establishes an authority for open-ended war anywhere in the world and against anyone.

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You can read the detention-specific portions of the December 14th House debate on the conference report here. Here are some highlights: Congressman Alcee Hastings (D-FL)  presented a strident opposition to the provisions. His comments begin right on page 1:
This legislation establishes an authority for open-ended war anywhere in the world and against anyone. It commits us to seeing a "terrorist'' in anyone who ever criticizes the United States in any country, including this one. The lack of definitions as to what constitutes "substantial support'' and "associated forces'' of al Qaeda and the Taliban mean that anyone could be accused of terrorism. Congress has not tried to curtail civil liberties like this since the McCarthy era; but here we are today, trying to return to an era of arbitrary justice, witch-hunts, and fearmongering. While this measure includes an exemption for United States citizens, it does not protect them from indefinite detention. In one fell swoop, we have set up a situation where American citizens could have their Fourth, Fifth, Sixth, Seventh, and Eighth Amendment rights violated on mere suspicions. And by placing suspected terrorists solely in the hands of the military, these provisions deny civilian law enforcement the ability to conduct effective counterterrorism efforts. The fact of the matter is that our law enforcement agencies and civilian courts have proven over and over again that they are more than capable of handling counterterrorism cases. I had the distinct privilege in this country of serving as a federal judge shepherding cases and protecting the interests of the United States and vital security interests during that period of time. And in every one of those cases--some 11 over the period of 9 3/4 years--all of the defendants were found guilty, and that is before 2001. More than 400 suspected terrorists have already been tried in the Federal courts of the United States of America. We should not break something that already works. The idea that the executive branch's current powers are inadequate to fight terrorism is proven false by 10 years of successful counterterrorism efforts. The idea that the President--any President--needs a whole new expansion of his--and I hope one day soon--her powers is just wrong. Most national security experts, Democrats and Republicans, are telling us not to adopt this language. Many officials responsible for our homeland security are telling us not to adopt this language. A lot of our military leaders are telling us not to adopt this language, Mr. Speaker. This legislation goes too far. We spend billions of dollars every year on counterterrorism, but we weaken those efforts by tossing aside our own system of justice. We tell the American public that we are fighting overseas in order to protect our freedoms, but then we pass legislation that undermines those very same freedoms here in the people's House and at home. And we tell the rest of the world to emulate our democratic traditions and our rule of law, but we disregard those values in a mad rush to find out how we can pretend to be the toughest on terrorism. We won't defeat terrorism by using the military to lock up innocent people for the rest of their lives on the mere suspicion of wrongdoing. We will not defeat terrorism by claiming the entire world as a battlefield. And we will not defeat terrorism by replacing our rule of law with reckless, uncontrolled, and unaccountable powers. ... I appreciate that the Republican majority, many of whom are my friends, don't want their holiday season ruined by having to work. But that doesn't mean we have to ruin everyone else's holiday season by passing bad laws.
Of course, a debate about war powers wouldn't be the same without Dennis Kucinich (D-OH) offering his thoughts, which start on page 5:
Mr. Speaker, this bill authorizes permanent warfare anywhere in the world. It gives the President unchecked power to pursue war. It diminishes the role of this Congress. The Founders saw article I, section 8 of the Constitution, which places in the hands of Congress the war power as essential to a check and balance against executive abuse of power. This legislation diminishes Congress' role in that regard. This legislation authorizes the military to indefinitely detain individuals without charge or trial, including the detention of U.S. citizens on U.S. soil. In short, what this bill does is it takes a wrecking ball to the United States Constitution and gives enormous power to the government or the State. I want friends on both sides of the aisle to understand this. We're giving the State more power over individuals with this bill. It's the wrong direction. Our children deserve a world without end, not a war without end. Our children deserve a world where they know that while their government will protect them, that it's not going to rule over them by invading their very thoughts and going, as the PATRIOT Act does, into their banking records or into their educational records. We've got to keep the government out of people's lives and stop the government from getting more into war, which gives the government more control over people. This is a time we take a stand for the Constitution and a stand for a government which is smaller when it comes to matters of war.
Shortly thereafter, HASC Ranking Member Adam Smith (D-WA) rose to defend the bill, beginning on page 9:
Now I understand that a lot of people have a problem with what is current law, and current law is something we've been debating ever since 9/11. Both the Bush administration and the Obama administration have taken the position that indefinite detention is an option. In two cases before the Supreme Court, the Hamdi case most notably, a U.S. citizen was briefly subject to indefinite detention. The Fourth Circuit Court upheld that right. That is current law. And I actually share some of the concerns amongst my colleagues about that current law. But this bill doesn't affect that. We, in fact, make it clear in our category on military detention that it is not meant to apply to U.S. citizens or lawful resident aliens. Read the bill. It is in there. Nothing in this section shall apply to U.S. citizens or lawful resident aliens. Now if you have a problem with indefinite detention,  that is a problem with current law. Defeating this bill will not change that, won't change it at all. But I'll tell you what it will do. It will undermine the ability of our troops to do their job, to do what we've asked them to do. If we defeat this bill, we defeat a pay raise for the troops, we defeat MILCON projects for the troops, and we defeat endless support programs that are absolutely vital to their doing their jobs. And I don't think I need to remind this body that 100,000 of those troops are in harm's way in Afghanistan right now facing a determined enemy in the middle of a fight. It is not the time to cut off their support over an issue that isn't going to be fixed by this bill. And let me emphasize that just one more time. Current law as interpreted by the Bush administration, the Obama administration, and the judiciary of this country creates the problems that everybody is talking about, not this bill. We put language in on detention policy because we think it's about time the legislative branch at least said something on the subject. But we are not the ones that created that problem. I urge support for this bill.
Congressman Jerrold Nadler (D-NY) then rose to voice his opposition to the bill, including his reasoning as to why the Feinstein Amendment does not do what its sponsor says it does:
And who will be taken out of the civilian justice system and imprisoned forever without a trial? The bill says anyone who "is determined'' to be covered by the statute. It doesn't say determined by whom or what protections there are to ensure that an innocent person doesn't disappear into a military prison. That's not America. We also need to be clear that the so-called "Feinstein amendment'' does not really provide the protection its sponsor intended to provide. The Feinstein amendment says that "nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.''  So what are "existing law and authorities''? As former FBI Director William Sessions has recently written: "The provision does not limit such detention authority to people captured on the battlefield. The reality is that current law on the scope of such executive authority is unsettled.'' Director Sessions goes on to point out that the two cases where the Supreme Court might have decided the question of detaining a U.S. citizen or a legal permanent resident, the U.S. claimed that the President had the authority--the administration claimed that the President had the authority to detain a suspected terrorist captured within the United States indefinitely without charge or trial.  In both these cases, Padilla and al-Mari, the government changed course and decided to try them in civilian courts in order to avoid a Supreme Court ruling on that question, and that question remains undetermined. So when the Feinstein amendment references "existing law,'' you should not assume that means that current law clearly deprives the President of this dangerous power. I hope it does, but it is still, legally, an open question. We should ensure that our liberty is protected and not leave that question to some future court, and we should certainly not enact a law codifying--and that's what this law does, it codifies, it puts into law terrifying claims of power made by Presidents but never approved by the courts or, until now, by the Congress. And that's the fundamental reason we should reject this bill. We must take great care. Our liberties are too precious to be cast aside in times of peril and fear. We have the tools to deal with those who would attack us.
Congressman Nadler interjected at several occasions during the debate to continue his opposition. Congressman Mac Thornberry (R-TX), HASC Vice Chairman, also rose to defend the conference report, countering that can put into law "the sun comes up,"' and if somebody comes and says, no, it doesn't, you can present all the evidence and you can present words that have clear meaning, and if somebody just wants to say, no, it doesn't, you at some level reach an impasse. The two provisions related to detention in this bill, the words that have been put into the law, are very clear. One says it does not apply to U.S. citizens. It does not. Nothing here affects U.S. citizens. The other provision says that nothing in this section can be construed to affect existing law or authorities related to the detention of U.S. citizens.
Other Congressmen who rose to oppose the provisions include: John Conyers (D-MI) on page 15, Hank Johnson (D-GA) on page 19, Pete Stark (D-CA), Jared Polis (D-CO), Jan Schakowsky (D-IL), Rush Holt (D-NJ), Yvette Clarke (D-NY), and Tom Price (R-GA). Congressmen who rose to defend the bill also include: HASC Chairman Buck McKeon (R-CA) and Rob Bishop (R-UT). We will post the transcript from the Senate's debate as soon as it is available.

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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