United States Senator Patrick Leahy on the NDAA

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Response from U.S. Senator Patrick Leahy to my email addressing my concerns the unlawful indefinite attainment of United States citizens by our government:

February 12, 2013

Dear Mr. Phillips:

Thank you for contacting me about detention authority and the National Defense Authorization Act (NDAA) for Fiscal Year 2013 (FY13).  I appreciate hearing from you on these important issues.

The NDAA that was enacted into law in December 2011 contained several deeply troubling provisions related to the indefinite detention of individuals without charge or trial.  These provisions undermine our nation’s fundamental principles of due process and civil liberties.  As Chairman of the Senate Judiciary Committee, I had serious concerns about these provisions from the outset and worked during the Senate floor debate to prevent their inclusion in the final bill.  I was disappointed that the Senate rejected several amendments last year that I supported to remove or amend these controversial measures.

The American justice system is the envy of the world.  A regime of indefinite detention degrades the credibility of this great nation around the globe, particularly when we criticize other governments for engaging in such conduct.  Indefinite detention contradicts the most basic principles of law that I have pledged to uphold since my years as a prosecutor and in our senatorial oath to defend the Constitution.  That is why I am fundamentally opposed to indefinite detention without charge or trial.

Immediately following passage of the NDAA for FY12, I continued my efforts to eliminate and fix these flawed detention provisions by cosponsoring the Due Process Guarantee Act.  The Due Process Guarantee Act have would effectively prevented the executive branch from indefinitely detaining U.S. citizens or lawful permanent residents captured domestically.  Last February, I chaired a hearing to examine this legislation and the issue of indefinite detention.  The Judiciary Committee heard testimony from witnesses who asserted that no individual arrested within the United States should be detained indefinitely – regardless of citizenship or immigration status.  I wholeheartedly agree, and I believe that the Constitution requires no less.

The notion of indefinitely imprisoning American citizens is the most striking, but to me the Constitution creates a framework that imposes important legal limits on the government and provides that all people in the United States have fundamental liberty protections.  That is why I cosponsored an amendment by Senator Mark Udall of Colorado to the NDAA for FY13, which would have provided expansive protections against indefinite detention and fixed this unwise policy for all people.  Unfortunately, this amendment was not brought up for a vote during consideration of this year’s NDAA.

However, on November 29, 2012, the Senate considered an amendment by Senator Dianne Feinstein of California, which closely mirrored the Due Process Guarantee Act.  I voted in favor of the amendment offered by Senator Feinstein, which the Senate adopted, to clarify that our government cannot detain indefinitely any citizen or legal permanent resident apprehended in the United States.  It was my hope that this would be a positive step forward in our efforts to undo some of the damage from the NDAA which was enacted in 2011.  I look forward to working with Senator Udall and others in continuing our efforts to improve the law in this area.

During the recent floor debate on the NDAA, the Senate considered one additional amendment related to detention policy by Senator Kelly Ayotte of New Hampshire.  Senator Ayotte’s amendment prohibited the use of any government funds to transfer detainees currently being held at Guantanamo Bay, Cuba, to the United States, even for trial or detention.  I strongly opposed Senator Ayotte’s amendment to bar the executive branch from determining the most prudent way to deal with detainees who have remained in legal limbo for years.  I continue to believe that many terrorism suspects can and should be held accountable and tried in federal courts, which have successfully tried and convicted over 450 terrorism suspects since September 11, 2001.  I voted against the Ayotte amendment to the NDAA, but it was adopted by the full Senate.

On December 4, 2012, the full Senate voted to pass the NDAA for FY13.  However, during conference negotiations with the House of Representatives, the Feinstein amendment was regrettably removed from the final bill text.  Additionally, the Ayotte amendment was reduced from a permanent ban on funding to transfer detainees at Guantanamo Bay, Cuba, to a one-year ban.  On December 21, the full Senate voted to adopt the conference report of the NDAA.  Due to the inclusion of these troubling detention provisions, I voted against final passage.

While I was disappointed that the final bill did not represent a positive step forward for our detention policy, you can be sure that I will keep working to uphold the principles of our Constitution, protect American values, and champion the rule of law.  I encourage you to read my full statement on detention policy and the NDAA on my website at http://www.leahy.senate.gov/press/detention-policy-and-the-defense-bill-statement.

Thank you again for contacting me.  Please keep in touch.


United States Senator

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