Udall Introduces Amendment to Prevent Veto of Critical Defense Bill
Pentagon Opposes Rushed Provisions, Udall Amendment Would Allow Military to Provide Input
With the White House threatening to veto a critical defense bill over the wording of provisions that would harm the military's ability to combat terrorism, Mark Udall introduced an amendment to ease the Pentagon's concerns and allow the Senate to move forward with the rest of the National Defense Authorization Act. He discussed the amendment in a speech on the Senate floor today (watch HERE). A copy of his amendment is available HERE.
Udall is a member of the Senate Armed Services and Intelligence committees. His amendment would remove the controversial provisions - which military experts and others say would harm national security - and require the Intelligence, Judiciary and Armed Services committees to hold hearings on the proposal and work out a compromise.
While Udall strongly supports the overall defense bill, he has led the opposition to provisions dealing with military detainees because they were drafted in spite of the Pentagon's opposition. The provisions remove the military's ability to select the best venue to prosecute suspected terrorists and create legal ambiguity that would jeopardize the military's anti-terrorism operations and detention practices.
"The United States Senate has a solemn obligation to our men and women in uniform to pass a Defense Authorization Act, but we also owe it to those fighting the war on terror to prevent rushed, untested and legally controversial limitations on their operations. I can't support provisions that I believe will hurt our national security," Udall said. "We haven't had time to adequately consider these provisions. We need to know what our military and intelligence experts - and our men and women in the field - actually need to most effectively prosecute the war on terror, especially before we change detainee provisions that are already working. I'm urging my colleagues to support my amendment so we can prevent a White House veto, move forward with the NDAA and reach a workable resolution on the detainee provisions."
Earlier this year, during the committee's original consideration of the bill, Udall cast the lone vote against the detainee provisions of the NDAA. In a committee hearing this week, he opposed a compromise draft of the provisions, which were written behind closed doors with almost no input from the military.
The following is the text of Udall's speech:
Mr. President, I come to the floor to comment on the bill in front of us today, and I want to just start my remarks by acknowledging the leadership of Chairman Levin, and Ranking Member McCain. Under their tutelage and leadership, they have provided an act that provides our armed forces with the equipment, services, training and the overall support that they need to keep us safe while they themselves are being protected. And I want to thank the chairman, the ranking member, my staff, colleagues, and I think most importantly the wonderful staff for their diligence and dedication to this important work.
Mr. President, I also come to the floor to speak out against a proposed change that would, I think, alter what has been a very effective set of terrorist detention policies and procedures, and I believe to make those changes would complicate our capacity to prosecute the war on terror and call into question the principles that we as Americans hold dear.
Mr. President, I filed an amendment, 1107, that would take a look at what is proposed in the NDAA. Now, we have a solemn obligation, Mr. President, to pass a National Defense Authorization Act, but we also have a solemn obligation to make sure that those who are fighting the war on terror have the best, most flexible, most powerful tools possible. And I have to say again - and I will say it more than two times in my remarks - that I'm worried that these changes that we're about to push through would actually hurt our national security.
I am a proud member of the Senate Armed Services Committee - and I want to be explicit - I understand the importance of this bill and I understand what it does for our military, which is why what I am going to propose with my amendment is that we pass the NDAA without these troubling new provisions but with a mechanism by which we can consider what has been proposed and perhaps at a later date include any applicable changes in the law. We need to hear from the Department of Defense, our defense community and the administration more broadly about what our men and women in the field actually need to effectively prosecute the war on terror, especially before we change detainee policies that are already working.
Mr. President, as I'm saying, I have really he serious concerns about the detainee provisions that have been included in the bill. In my opinion and the opinion of many others - and I will share those opinions and insights with my colleagues - these provisions disrupt the executive branch's capacity to enforce the law and impose unwise and unwarranted restrictions on our ability to aggressively combat international terrorism. In so doing, they inject legal uncertainty and ambiguity that may only complicate the military's operations and practices.
Now, Mr. President, I'm not the only one who has serious concerns. The Secretary of Defense has urged us to oppose these new provisions, both the chairman of the intelligence and judiciary committee strongly oppose them, and the president's team is recommending a veto. These are people whose opinions should be carefully considered before we put these new proposals into our legal framework. In the statement of administration policy, the White House states - quote - "we have spent 10 years since September 11, 2001, breaking down the walls between intelligence, military and law enforcement professionals. Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult."
Those are striking words, Mr. President, that should give us all pause as we face - it seems to me - a bit of a rush to submit these untested and legally controversial restrictions on our ability to prosecute terrorists. Mr. President, I would ask unanimous consent to place the entire statement of administration policy in the record.
These are complex issues that have far-reaching consequences for our military, our civilian law enforcement agencies and our intelligence community as they work to keep Americans safe from harm. Despite this fact, the Department of Defense and the national security staff, as far as I know, had little opportunity to review or comment on the final language in the provisions, and as a result, these provisions restrain the executive branch's option to utilize in a swift and flexible fashion all the counterterrorism tools that are now legally available.
That quote comes directly from a letter addressed to the Armed Services Committee from Secretary Panetta, and I think we all know that Mr. Panetta was also, before he held the job that he has now, Secretary of Defense, he was the director of the CIA, so he very well knows the threats facing our country, and he knows that we cannot afford to make mistakes when it comes to keeping our citizens safe. And, Mr. President, I would ask unanimous consent that Secretary Panetta's letter be entered into the record.
The provisions I'm speaking to are well intended. I have much admiration for my colleagues who proposed them, but I think we need to take some more time to consider the ramifications. The United States, our country, can currently choose from several options when prosecuting terrorists. That flexibility has allowed us to try, convict and imprison hundreds of terrorists, and it allows the government to select the venue that will provide the highest likelihood of obtaining a conviction.
The current detention provisions in the bill we are debating would strip away that flexibility and potentially impair our capacity to successfully prosecute and convict terrorists. It's not clear to me why, after 10 years of successfully prosecuting terrorists and preventing another 9/11-like attack, why we would want to limit our options. Well, our enemies are constantly adapting their tactics and expanding their efforts to do us harm.
In a recent op-ed in the Chicago Times, a bipartisan group of three former federal judges, including William S. Sessions, who is also the appointed director of the FBI under President Reagan, said it best when describing these provisions - quote - "legislation now making its way through Congress would seek to over-militarize America's counterterrorism efforts, effectively making the U.S. Army the judge, juror to the exclusion of FBI and local and state law enforcement agencies. As former federal judges, we find this prospect deeply disturbing. Not only would such an effort ignore 200 years of legal precedent, it would fly in the face of common sense." End of quote. And, Mr. President, I would ask unanimous consent that that op-ed be entered into the record.
Mr. President, I would also point out that these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect. One section of these provisions, section 1031, would be interpreted as allowing the military to capture and indefinitely detain American citizens on U.S. soil. Section 1031 essentially repeals the Posse Comitatus Act of 1878 by authorizing the U.S. military to perform law enforcement functions on American soil. That alone should alarm my colleagues on both sides of the aisle, but there are other problems with these provisions that must be resolved.
These detainee provisions are unnecessary, counterproductive and potentially harmful to our counterterrorism efforts. And, Mr. President, I know I've said this a couple of times already, but it feels like they're being rushed through in a manner that doesn't serve us. The Department of Defense has had little input, there have been no hearings and earlier this week the changes were presented to us in the Armed Services Committee just hours before we were asked to vote on them.
These are just too important a set of questions to let them pass without a thorough review and far greater understanding of their effect on our national security and our fight against terrorism. It feels to me, to this senator, that we're rushing hastily to address a solution in search of a problem. And we ought to hear from the Department of Defense, the intelligence community, and our colleagues in other relevant committees before we act. Do we really believe that this Congress - again let me underline that - after ten years of successfully prosecuting the war on terror - should substitute its views for those of our homeland security leadership without careful analysis?
Mr. President, I recently received a letter signed by 18 retired military leaders in opposition to these provisions. The letter states that - quote - "mandating military custody would undermine legitimate law enforcement and intelligence operations crucial to our security at home and abroad." Mr. President, I couldn't agree more. And I'd ask unanimous consent that this letter be included in the record.
We are already trying and convicting terrorists in both civilian courts and under military commissions. The provisions that are in this bill would require the DOD to shift significant resources away from its mission to act on all the fronts all over the world and it would become a police force and jailer. This is not what they're good at. This is not what we want them to do, and I think it has dangerous potentially consequences because we have limited resources, limited manpower.
We wouldn't lose anything by taking a little bit more time to discuss and debate these provisions. But we could do real harm to our national security by allowing this language, un-scrutinized, to pass, and that's precisely what our highest-ranking national security officers are warning us against doing. This is a debate we need to have. It's a healthy debate, but we ought to be armed with all the facts and expertise before we move forward. The least we can do is take our time, be diligent and hear from those who will be affected by these new limitation on our ability to prosecute terrorists. And it concerns me, Mr. President, that we would tell our national security leadership, a bipartisan national security leadership, by the way, that we wouldn't listen to them and that Congress knows better than they do. It doesn't strike me that that's the best way to secure and protect the American people.
So, Mr. President, that's why I have filed amendment 1107. I think it's a common-sense alternative that will protect our constitutional principles and beliefs, while also allowing us to keep our nation safe. The amendment has a clear aim, to ensure that we follow a thorough process and hear all views before rushing forward with new laws that could be harmful to our national security.
Mr. President, what's in the amendment? It's straightforward. Specifically, the amendment would require the defense, intelligence and law enforcement agencies report to Congress with recommendations for any additional authorities or flexibility that they need to detain and prosecute terrorists. In other words, let's not put the cart before the horse or fix something that isn't broken. Let's first hear from the stakeholders as to what laws they believe need to be changed to give them better tools to do their jobs.
My amendment would then ask for hearings to be held so we can fully understand the views of respected national security experts. And moreover, it would require input from each of the relevant committees to ensure we have carefully considered the benefits and consequences of our actions. The chairmen of our judiciary and intelligence committees have deep concerns about the detainee provisions in the pending legislation. And of course, Mr. President, as we undergo this process, the existing laws that guide our actions today would remain in place. My amendment is straightforward, it's common sense, and it allows us to make sure we will win the war on terror.