January 12, 2012
Mr. Orlin Olson
PO Box 1978
4946 Montana 200
Thompson Falls, Montana 59873
Thank you for contacting me regarding certain provisions in the National Defense Authorization Act of 2012 (H.R. 1540) dealing with enemy combatants. It's good to hear from you.
There has been a lot of misinformation regarding two provisions in the bill relating to military detention. First and foremost, like you, I believe that individual liberties granted to us under the Constitution should not be taken lightly and must be vigorously defended. Protecting our Constitutional rights is one of the most important functions the federal government must undertake and is something I have been fighting for ever since I was elected to Congress. Having said this, I remain confident that the NDAA bill does not infringe on these rights.
After the September 11, 2001, attacks on America, Congress passed the Authorization for Use of Military Force (AUMF) for enemy combatants against the U.S. Since then, this law has been used successfully by the courts and the executive branch to detain members of terrorist groups engaged in the killing of U.S. soldiers and citizens. However, even though the AUMF has been used as the legal authority to detain terrorist suspects, the power to do so is only implied. The language in the NDAA simply affirms what the courts and executive branch have been using for years, namely, that the military may lawfully detain individuals who are engaged in armed conflict with the United States, as stated by the AUMF. In addition, language in the NDAA includes specific protections for American citizens, even those who are part of a terrorist group and who engage in armed conflict against the United States.
Below are the two key provisions from the final bill:
SUBTITLE D. SEC. 1021. (p.655)(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.
SUBTITLE D. SEC. 1022. (p. 657) (b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.— (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
In addition, U.S. law already prohibits American citizens from unlawful detention. In Hamdi v. Rumsfeld, the Supreme Court ruled that while acknowledging the legitimacy of AUMF, the federal government does not have the authority to take away a U.S. citizen's habeas corpus rights. The ruling affirmed that Yaswer Esam Hamdi, a U.S. citizen being held by the military for engaging in armed conflict against the U.S., still had the full protections under the Constitution.
Additionally, in an effort to make it even more certain that our constitutional rights and liberties will not be infringed under this law, I have cosponsored legislation to ensure there are no loopholes or unintended consequences that would give power to the federal government to arrest Americans without due process. My legislation (H.R. 3676) would amend and further strengthen the NDAA by stating that "United States citizens may not be detained against their will without all the rights of due process afforded to citizens in a court ordained or established by or under Article III of the Constitution of the United States."
In the end, there is simply no language in this bill that extends any new authority to the federal government for the detention of American citizens by the U.S. military. However, I have taken the necessary steps to make absolutely certain all American citizens are afforded the rights granted to them under the Constitution. I firmly believe we need to be very careful to balance our national security needs with the fundamental civil rights that I have sworn an oath to uphold. I'm going to continue fighting to protect Montana families without asking them to surrender their constitutionally protected freedoms.
Thanks again for contacting me. If you get a chance, I encourage you to visit my website at http://www.house.gov/rehberg where you can find the latest news about what's happening in Congress. Keep in touch.
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