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My Votes on the National Defense Authorization Act for Fiscal Year 2012

Nov 30, 2011 | Blog

Several people have asked about my votes on the National Defense Authorization Act for Fiscal Year 2012.  In particular, some people are wrongly suggesting that this legislation will allow the military to capture and indefinitely detain any American citizen, and that the US Armed Forces would be able to perform law enforcement functions on American soil because of the authority conferred under Sections 1031 and 1032 of the Act.  While I do have other serious concerns with this legislation, those particular assertions could not be further from the truth.  I want to take this time to explain what the law actually does, what my position is on these issues, and why I joined with Senators Demint, Coburn and Lee to vote for those specific sections, but against cloture on the final bill. 

Section 1031 of this act merely affirms the authority that the president already has to detain certain people pursuant to the current Authorization for Use of Military Force; in fact, this same section of the bill specifically states that nothing stated in Section 1031 is intended to expand the president’s power.  In addition, this section sets specific limits on who can be detained under this act to only those people who planned or helped carry out the 9/11 attacks on the United States or people who are a member of, or substantially support, Al-Qaeda, the Taliban, or their respective affiliates.  There is no language that could possibly be construed as repealing the Posse Comitatus Act and allowing the US military to supplant your local police department in carrying out typical law enforcement activities.

In particular, some folks are concerned about the language in Section 1031 that says that this includes “any person committing a belligerent act or directly supported such hostilities of such enemy forces.”  This language clearly and unequivocally refers back to Al-Qaeda, the Taliban, or its affiliates.  Thus, not only would any person in question need to be involved with Al-Qaeda, the Taliban, or its surrogates, but that person must also engage in a deliberate and substantial act that directly supports their efforts against us in the war on terror in order to be detained under this provision.  There is nothing in this bill that could be construed in any way that would allow any branch of the military to detain a law-abiding American citizen if you go to the local gun store or grocery store.  What this section of the bill does is help provide for our national security by giving clarity to the military in regard to its authority to detain people who have committed substantially harmful acts against the United States.  This is extremely important given that there are Al-Qaeda cells currently operating within our borders.  I would not leave the risk of a terrorist attack that could claim the life of a member of my family up to chance, and I will not leave that risk for your family either.

Section 1032 of this bill concerns a smaller group of people who Congress feels are required to be detained by the US military because people who fit within this criteria are a more serious threat to our national security.  Any person detained under Section 1032 must be a member of, or part of, Al-Qaeda or its associates AND they must have participated in the planning or execution of an attack against the US or our coalition partners.  Simply put, the application of this detention requirement is limited to Al-Qaeda members that have tried to attack the US or its allies.  However, this detention requirement is clearly limited by a clause that states that the requirement to detain does not extend to US citizens or lawful permanent residents. 

Together, these two sections do the following: they affirm the authority of the executive branch to act within our national interest and they provide the federal government with the tools that are needed to maintain our national security.  This bill does NOT overturn the Posse Comitatus Act; the military will not be patrolling the streets.  This bill does not take away your rights as a citizen or lawful permanent resident; the authority under this act does not take away one’s habeas rights.  These sections do NOT take away an individual’s rights to equal protection under the 14th Amendment to the US Constitution, nor do they take away one’s due process rights afforded under the 5th or 14th.  If this bill did such a thing, I would strongly oppose it.

I want to thank everyone for reaching out to the office to voice your concerns on this bill.  I want to assure you that I always have, and always will, listen to your concerns and address them in a timely fashion.  I know this bill is not perfect; in fact, I proposed 2 Amendments to prevent the President from transferring foreign terrorists to the US to be prosecuted in the federal court system, and I joined with Senators DeMint, Coburn, and Lee to vote against cloture.  However, in regard to the assertions that this bill allows the US military to supplant our local police departments or that it allows the federal government to detain otherwise law abiding citizens for simply carrying on in their daily lives, those assertions are entirely unfounded. As always, if you have any other questions, please feel free to contact me.