Letter from Senator Ben Nelson Explaining NDAA

[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.