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(8,571 posts)
Tue Dec 27, 2011, 12:45 AM Dec 2011

Letter from Senator Ben Nelson Explaining NDAA [View all]

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.


Ben Nelson U.S. Senator

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


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See? Al Franken, the ACLU and the other Chicken Little crowd MannyGoldstein Dec 2011 #1
Maybe they should have considered both sides, or all of the sides, before treestar Dec 2011 #19
Of course our honorable colleague nadinbrzezinski Dec 2011 #2
This message was self-deleted by its author SunsetDreams Dec 2011 #3
That signing statement you posted is NOT for the NDAA bill Tx4obama Dec 2011 #6
The link in your OP is for the Senate bill, NOT the final House bill Tx4obama Dec 2011 #4
thanks SunsetDreams Dec 2011 #7
my understanding after researching the issue was that senator Nelson is wrong. nt limpyhobbler Dec 2011 #5
what research have you done that would prove Senator Nelson wrong? SunsetDreams Dec 2011 #8
Probably I looked at all the same materials you did but just came to a different conclusion. limpyhobbler Dec 2011 #9
The clause added due to the Feinstein amendment reads ... Tx4obama Dec 2011 #10
That's not what they mean by "existing law" Major Nikon Dec 2011 #13
I think that is why both of these things can simultaneously be true karynnj Dec 2011 #14
Except it did change the provisions of the AUMF Major Nikon Dec 2011 #17
I didn't see that in the language - though I am not disputing it karynnj Dec 2011 #24
You can read it here... Major Nikon Dec 2011 #25
Isn't the Patriot Act "existing law"? Bandit Dec 2011 #26
At least you've considered another side of the question treestar Dec 2011 #20
see all the other posts in this thread and watch this video limpyhobbler Dec 2011 #30
Thats the same crap he sent me newfie11 Dec 2011 #11
Ben Nelson is the most conservative Democrat in the Senate Major Nikon Dec 2011 #12
On this matter (and several others) he and the President seem to agree. nt Romulox Dec 2011 #15
I don't see the President putting this kind of spin on the bill Major Nikon Dec 2011 #16
So, that fact that the President and Ben Nelson agree on this matter is irrelevant? Romulox Dec 2011 #18
I never agreed with your "fact" in the first place Major Nikon Dec 2011 #28
Those are reasons (perhaps "excuses") for his agreement. Signing the bill signals the President's Romulox Dec 2011 #29
What spin? treestar Dec 2011 #21
That's a big "If" Major Nikon Dec 2011 #27
If it's already in place why again legislate it, and why then resist our demand to remove it? Fire Walk With Me Dec 2011 #22
Is there, like, a school in or near DC where they teach politicians how to speak fluent Weasel? Zorra Dec 2011 #23
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