Letter from Senator Ben Nelson Explaining NDAA

[SunsetDreams]

Dear xxxxx:

Thank you for contacting me regarding detainee provisions within the National Defense Authorization Act (NDAA) for Fiscal Year 2012, S. 1867, which passed the Senate by a vote of 93-7 on December 1, 2011. I believe there is a great deal of misconception surrounding these detainee provisions, and I would like to take this opportunity to clear up these misunderstandings.

Sections 1031 and 1032 of S. 1867 do not create new laws regarding the holding of an American citizen without trial. In fact, to reinforce this point, the Senate passed Senate Amendment 1456, offered by Senator Dianne Feinstein, by a vote of 99-1. This amendment codifies that nothing in Section 1031 regarding the detainee issue affects existing law or authorities relating to citizens or lawful aliens of the United States or any other person who is captured or arrested in the U.S. I voted in favor of amendment 1456.

The authority to hold U.S. citizens engaging in acts of war against the U.S. in military custody has existed for many years. Consequently, Section 1031 simply codifies existing law under the Authorization for Use of Military Force (AUMF), 50 U.S.C. w 1541, and the 2004 Supreme Court case Hamdi v. Rumsfeld, which states that "[t]here is no bar to this Nation's holding one of its own citizens as an enemy combatant." Section 1031 affirms, it does not create, the authority of the President to use all necessary and appropriate force pursuant to the AUMF against any person who participated in the September 11, 2001, attacks or who is a part of al-Qaeda, the Taliban, or associated forces and who is engaged in hostilities against the United States. If an American citizen is part of al-Qaeda or the Taliban and engages in hostilities against the U.S., then that citizen, as determined by the Supreme Court and the Administration, and now codified in S. 1867, can be held without trial until the end of hostilities, similar to U.S. citizens who assisted the Nazis during World War II.

You may be interested to learn that S. 1867 actually creates new safeguards for holding individuals engaging in acts of war against the U.S. It requires that once the U.S. Department of Defense (DOD) detains a citizen who has joined al-Qaeda or the Taliban, DOD must provide that person with an attorney and bring the accused before a federal judge to make the argument that the individual is an enemy combatant. Additionally, an annual review of the accused status as an enemy combatant is required.

It also should be noted that there is nothing in the bill which undercuts the right of habeas corpus. Detainees held by the United States may seek federal court review of the legality of their detention in habeas corpus proceedings. In such proceedings, the government bears the burden of proving the legality of the detention by a preponderance of the evidence. I believe these safeguards will protect citizens and non-citizens alike from being wrongfully held.

Finally, Section 1032 of this bill provides for mandatory military custody for all non-citizens captured, who are members of al-Qaeda and are carrying out or planning to carry out an attack against the United States. We are at war with al-Qaeda, and I believe mandatory military custody is in our best national security interest in the fight against terror. This provision does not apply to American citizens, and there is a national security waiver the Administration may use in the event our national security is better protected by holding an individual in civilian custody.

Thank you again for contacting me. It is an honor to represent you and all Nebraskans in the Senate, and I encourage you to continue sharing your thoughts and ideas.

Sincerely,

Ben Nelson U.S. Senator


Final House Bill to verify can be found here: Actual Bill:

http://www.opencongress.org/bill/112-h1540/text

[MannyGoldstein]

1. See? Al Franken, the ACLU and the other Chicken Little crowd

are ninnies.

[treestar]

19. Maybe they should have considered both sides, or all of the sides, before

jumping to conclusions.

Al Franken is human, yes, why should we assume we cannot disagree with him, ever?

[nadinbrzezinski]

2. Of course our honorable colleague

realizes that the signing statement by the President actually PARTIALLY deals with this mess...

There are days.

[Tx4obama]

6. That signing statement you posted is NOT for the NDAA bill

President Obama has NOT yet signed: H.R. 1540 - National Defense Authorization Act for Fiscal Year 2012
it is still 'pending legislation': http://www.whitehouse.gov/briefing-room/pending-legislation

The signing statement was in regards to: The Consolidated Appropriations Act, 2012 (Omnibus)
which President Obama signed on Dec 23rd: http://www.whitehouse.gov/briefing-room/signed-legislation

[Tx4obama]

4. The link in your OP is for the Senate bill, NOT the final House bill

In the final bill Sections 1031 and 1031 were renumbered to be 1021 and 1022.

That is how you can tell which is the FINAL bill.

Thought I'd let you know just in case you wanted to add a link to the 'final bill'.

[SunsetDreams]

7. thanks

[limpyhobbler]

5. my understanding after researching the issue was that senator Nelson is wrong. nt

[SunsetDreams]

8. what research have you done that would prove Senator Nelson wrong?

[limpyhobbler]

9. Probably I looked at all the same materials you did but just came to a different conclusion.

I dunno I'm typing on my cell phone so I don't wanna get into a whole thing about having to prove something, I don't have copy and paste. It's a tiny tiny keyboard.

Anyways the burden of proof should be on the NDAA supporters to prove there is no problem with the bill (relating to indefinite detention for citizens). I don't think they have proved it.

For me its 1031e or 1021e where it says it does not effect existing authorities. To me that could mean that if the executive has already claimed and excercised the authority to detain without trial, Congress now explicitly consents to such authority in Law for the first time.

That's worse than just a claimed authority based on one possible interpretation of a Supreme Court ruling.

Can you honestly say that is not a valid concern?

[Tx4obama]

10. The clause added due to the Feinstein amendment reads ...

(e) AUTHORITIES.-- 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.

---

Note the part that says: Nothing in this section shall be construed to affect ''existing law'' ...

Existing law in The USA includes The Bill of Rights.

There is nothing to prove. The bill does NOT affect 'existing law' in regards to United States citizens

[Major Nikon]

13. That's not what they mean by "existing law"

A law signed by the President can't trump the Constitution anyway. If by "existing law" they meant the Bill of Rights, the statement would be meaningless. What they actually meant by "existing law" was the AUMF. So the statement isn't intended to protect the rights of any accused. The statement was intended to protect the government in cases where the AUMF has already been applied.

[karynnj]

14. I think that is why both of these things can simultaneously be true

That statement says the current bill did NOT change the existing provisions of the AUMF in either direction.

However, the inclusion of the language did reaffirm the provisions that had been vague enough to have been challenged. The Udall amendment sought to remove that that language. If that language did nothing why would most of the Democrats have voted for the Udall amendment that changed a bill sponsored by the Democratic chair of the committee and why was the Obama administration seen as interested in the outcome of that amendment.

Some proof that the final bill did - at minimum - shore up unwanted provisions of the AUMF - is that it was perceived that removing that language - which is what the Udall amendment did - was considered to be different than leaving it in. If the removal of the language is seen as a change, then it seems hard to see how its inclusion changed nothing.

Feinstein wrote the amendment that passed AND was one of the people working hardest to remove or amend the language that Levin included in the bill, so she clearly did not believe the disputed language did nothing in and of itself. Trying to put all this together, I think the problem is that the language specifically reaffirms provisions that previously were vague - and the provisions are ones many Democrats did not want to reaffirm - when, in fact, they need to be changed. The Feinstein amendment was (IMO) a last ditch effort that put in writing what Levin and all were saying - that this bill does not change the existing law. The point being to make it clearer that the intent of the Senate was not to expand the provisions.

It is also clear that there is not enough support to actively change the existing law. (This can be seen by the fact that the Udall amendment, which I think just removed the language added and started a process where the President and others would need to explicitly tell appropriate Congressional committees what their position on detainees was, was roundly defeated, with 38 for it and 60 against it. That would mean the majority not only supported the existing law, but wanted it reaffirmed and certainly not examined.)

The real mystery to me is why Levin accepted it into the bill in the first place. Had it NOT been added in committee, it would have taken 60 votes to add it if those against it filibustered. From the Udall amendment vote, they might have had the Senators needed. It is impossible to argue that it was done to avoid a worse amendment passing because Levin (and people like Reed and Whitehouse) are included in that 60.

Levin KNEW this was a must pass bill. The liberal Democrats failed (via the Udall amendment) to remove it. It is not clear that there was any path to getting a defense bill passed without that language at that point. Even if every Democrat who voted for the Udall bill voted to filibuster the final bill, it would either have gained cloture and passed anyway.

[Major Nikon]

17. Except it did change the provisions of the AUMF

If you read the AUMF, there is a statement that basically says those who may be indefinitely detained by the military must have some connection to 9/11. Gone is this language in the NDAA, which effectively makes these provisions last until(if?) another act of congress reverses them.

[karynnj]

24. I didn't see that in the language - though I am not disputing it

Does that limit it to "terrorism" rather than explicitly to terrorists involved with 911? (The AUMF allowed attacks on people not explicitly involved with 911, but with AQ - and quickly expanded to anyone who helped or sheltered them.) Could this now go beyond AQ?

[Major Nikon]

25. You can read it here...

http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html

[Bandit]

26. Isn't the Patriot Act "existing law"?

The Patriot Act authorizes everything people are expressing concerns over...

[treestar]

20. At least you've considered another side of the question

So where is he wrong and what contradicts him?

[limpyhobbler]

30. see all the other posts in this thread and watch this video

Last edited Tue Dec 27, 2011, 10:56 PM - Edit history (1)

[newfie11]

11. Thats the same crap he sent me

standard form letter.

[Major Nikon]

12. Ben Nelson is the most conservative Democrat in the Senate

The spin he puts on this subject is dizzying.

[Romulox]

15. On this matter (and several others) he and the President seem to agree. nt

[Major Nikon]

16. I don't see the President putting this kind of spin on the bill

Nelson still caucuses with the Democrats and still manages to vote with them on some issues (although sometimes not until concessions are offered to Republicans). So the fact that he happens to agree with the President on some things is meaningless. You can say the same thing about any member of congress with a D by their name.

[Romulox]

18. So, that fact that the President and Ben Nelson agree on this matter is irrelevant?

I'm at a loss to understand your point, here.

[Major Nikon]

28. I never agreed with your "fact" in the first place

Did you miss the subject line of my last post?

Just because the President signs a bill, doesn't mean he "agrees" with Nelson. It just means that he has few political alternatives left besides a veto which the Republicans know will paint him as soft on terrorism in an election year. Obama has tried repeatedly to close Gitmo, while Nelson is all for making it a permanent Gulag. Doesn't sound like they are in agreement at all.

[Romulox]

29. Those are reasons (perhaps "excuses") for his agreement. Signing the bill signals the President's

assent to that bill. This is basic civics.

[treestar]

21. What spin?

If it really is as he says, the spinners are the hair-on-fire crowd.

[Major Nikon]

27. That's a big "If"

For one thing, he alludes to the purpose of the NDAA was to reel in the war powers available to the President. Nothing could be further from the truth. If Obama hadn't issued a veto threat, the legislation would have REQUIRED everyone to be detained indefinitely by the military with no trial who was arrested under the provisions of the act. Furthermore the current legislation threw out the tieback to 9/11 contained in the AUMF, so it's closer to the truth to say that the NDAA guarantees these powers indefinitely, rather than just the temporary intent of the AUMF.

He claims the authorization to indefinitely hold US citizens by the military has existed for "many years." What he doesn't say was that this authorization was given during the rampant hysteria following 9/11. One would think we are a bit older and wiser 11 years later given the abuse of power orchestrated by the Bush administration, and the diminished nature of a persistent and ongoing threat of terrorist attack.

He alludes to the legislation requiring "safeguards" that protect the right to habeas corpus of the accused. That was done by the USSC decision, not by this legislation.

In short, Nelson claims this legislation does nothing that wasn't already allowed. If that's true, then why was it written in the first place. Clearly the intent of this legislation is to permanently codify "war powers", even though we are not at war.

[Fire Walk With Me]

22. If it's already in place why again legislate it, and why then resist our demand to remove it?

Why did a Homeland Security van buzz #Occupy Los Angeles' recent solidarity with Egypt rally?

They already think protesters are terrorists:




Occupy Philadelphia:

[Zorra]

23. Is there, like, a school in or near DC where they teach politicians how to speak fluent Weasel?

"Detainees held by the United States may seek federal court review of the legality of their detention in habeas corpus proceedings."

"may seek" does not mean "have the right to seek".

Definition of may: Expressing possibility.

Definition of can: Be able to.

So they lock me up for participating in a peaceful "illegal assembly" and designate me a terrorist. I request a federal court review of the legality of my detention.

The court says says "LOL! Too bad, you liberal POS! We're fascists, and we don't have to review your case, and we're not going to, cuz we just don't like your kind."

I'm stuck in the big house with [no right to trial, no legal recourse, totally at the mercy of the military.

Is this how it works?


Ambiguity in legal language can be lethal.