AUMF

NDAA Senate Debate Part 3: "hundreds and hundreds of hours of debate"

By Raffaela Wakeman
Thursday, December 1, 2011, 3:21 PM

You can read the edited transcript from the Senate's debate yesterday on the detention provisions here. Previous coverage is available here and here. This includes debate on the Sessions amendment starting on page 4, the Feinstein amendments starting on page 11 and continuing throughout the transcript, and Senator Ayotte's amendments on page 40. As Senator Udall advocated on behalf the Feinstein Amendment yesterday, he and Senator McCain had a back and forth regarding whether or not the U.S. has spent enough time debating the detention provisions:

   Mr. UDALL of Colorado. Mr. President, I rise today in support of amendments Nos. 1125 and 1126, which have been offered by the Intelligence Committee chairwoman, Senator Feinstein.

While the Senate did not adopt my amendment that would have instructed the Senate to consider these detainee matters separately from the Defense authorization bill, I believe Senator Feinstein's amendments make important changes and improvements to the bill--improvements that may yet avoid a problem with a Presidential veto.

...

I am not suggesting these provisions, as they are now included in this bill, would result in historians drawing those similar kinds of conclusions 10 or 20 or 30 years from now. But why not be safe? Why not take the time to ensure that we keep faith with those core values that make America what it is? That is all I am asking. I think that is all Senator Feinstein is asking for us to do. That is what the 38 Senators who joined us yesterday to vote for my commonsense approach were saying as well.

In sum, Senator Feinstein has offered some small changes. It would help alleviate some of the justifiable concerns with these provisions. As I have said, I continue to worry that there will be unintended consequences to enacting the detainee provisions altogether. However, we can make some of these small improvements to avoid harming our counterterrorism activities and preventing the loss of rights and freedoms granted to all Americans by our Constitution.

In closing, I urge all of our colleagues to support Senator Feinstein's amendments.

The PRESIDING OFFICER. The Senator from Arizona.

Mr. McCAIN. Mr. President, briefly, while my friend from Colorado is on the floor, he said: Take the time. We have been taking time, I tell the Senator from Colorado, since September 11, 2001, when the United States of America was attacked. We passed the Detainee Treatment Act. We passed other pieces of legislation--the PATRIOT Act, and others. Take the time?

I say, in all due respect, we have taken a lot of time--in fact, hundreds and hundreds of hours of debate, discussion--as to how to address this threat to the United States of America.

If the Senator from Colorado supports the Feinstein amendment, I agree with that. I cannot agree that we have not taken the time. I personally have taken--I cannot tell you--untold hours addressing this issue of how we treat detainees. We may have a fundamental disagreement, but I do reject the argument that we have not taken the time.

The Senate is scheduled to hold a cloture vote today, after it finishes voting on a few more amendments. It agreed to move to end debate in an 88-12 vote yesterday.

Feinstein amendment No. 1125 would insert the word "abroad" after "is captured." As a result, the detention provisions would only apply when a suspect is captured outside of the United States. Amendment No. 1126 reads as follows:

(Purpose: To revise the provisions relating to detainee matters)
    Strike subtitle D of title X and insert the following:

Subtitle D--Detainee Matters
   SEC. 1031. REVIEW OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General.--Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:

    (1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).

    (2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.

    (3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.

    (b) Covered Persons.--A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

    (1) The Authorization for Use of Military Force (Public Law 107-40).

    (2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

    (3) Any other statutory or constitutional authority for use of military force.

    (c) Congressional Action.--Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.

(d) Appropriate Committees of Congress Defined.--In this section, the term ``appropriate committees of Congress'' means--

    (1) the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and

    (2) the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.

For those interested in what has happened to Kelly Ayotte's amendment that would create a classified interrogation techniques  section of the Army Field Manual, read the colliquoy between Senators Ayotte, Lieberman, and Graham about the amendment starting on page 40 of the edited transcript. The text of the amendment is included below:

(Purpose: To authorize lawful interrogation methods in addition to those authorized by the Army Field Manual for the collection of foreign intelligence information through interrogations)
    At the end of subtitle D of title X, add the following:

SEC. 1038. AUTHORITY FOR LAWFUL INTERROGATION METHODS IN ADDITION TO THE INTERROGATION METHODS AUTHORIZED BY THE ARMY FIELD MANUAL.

(a) Authority.--Notwithstanding section 1402 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), the personnel of the United States Government specified in subsection (c) are hereby authorized to engage in interrogation for the purpose of collecting foreign intelligence information using methods set forth in the classified annex required by subsection (b) provided that such interrogation methods comply with all applicable laws, including the laws specified in subsection (d).

(b) Classified Annex.--Not later than 90 days after the date of the enactment of this Act, and on such basis thereafter as may be necessary for the effective collection of foreign intelligence information, the Secretary of Defense shall, in consultation with the Director of National Intelligence and the Attorney General, ensure the adoption of a classified annex to Army Field Manual 2-22.3 that sets forth interrogation techniques and approaches, in addition to those specified in Army Field Manual 2-22.3, that may be used for the effective collection of foreign intelligence information.

(c) Covered Personnel.--The personnel of the United States Government specified in this subsection are the officers and employees of the elements of the intelligence community that are assigned to or support the entity responsible for the interrogation of high value detainees (currently known as the ``High Value Detainee Interrogation Group''), or a successor entity.

(d) Specified Laws.--The law specified in this subsection is as follows:

    (1) The United Nations Convention Against Torture, signed at New York, February 4, 1985.

    (2) Chapter 47A of title 10, United States Code, relating to military commissions (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

    (3) The Detainee Treatment Act of 2005 (title XIV of Public Law 109-163).

    (4) Section 2441 of title 18, United States Code.

    (e) Supersedure of Executive Order.--The provisions of Executive Order No. 13491, dated January 22, 2009, shall have no further force or effect, to the extent such provisions are inconsistent with the provisions of this section.

(f) Definitions.--In this section:

    (1) ELEMENT OF THE INTELLIGENCE COMMUNITY.--The term ``element of the intelligence community'' means an element of the intelligence community listed or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

    (2) FOREIGN INTELLIGENCE INFORMATION.--The term ``foreign intelligence information'' has the meaning given that term in section 101(e) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)).

Senator Ayotte withdrew a different amendment, No. 1067, as it will be considered by the conference committee once (and if) the Senate passes its version of the bill. That amendment would require notification of Congress when a terrorist suspect is captured. The text of that amendment is here:

(Purpose: To require notification of Congress with respect to the initial custody and further disposition of members of al-Qaeda and affiliated entities)
    At the end of subtitle D of title X, add the following:

SEC. 1038. REQUIRED NOTIFICATION OF CONGRESS WITH RESPECT TO THE INITIAL CUSTODY AND FURTHER DISPOSITION OF MEMBERS OF AL-QAEDA AND AFFILIATED ENTITIES.

(a) Required Notification With Respect to Initial Custody.--

    (1) IN GENERAL.--When a covered person, as defined in subsection (c), is taken into the custody of the United States Government, the Secretary of Defense and the Director of National Intelligence shall notify the specified congressional committees, as defined in subsection (d), within 10 days.

    (2) REPORTING REQUIREMENT.--The notification submitted pursuant to paragraph (1) shall be in classified form and shall include, at a minimum, the suspect's name, nationality, date of capture by or transfer to the United States Government, location of such capture or transfer, places of custody since capture or transfer, suspected terrorist affiliation and activities, and agency responsible for interrogation.

    (b) Required Notification With Respect to Further Disposition.--

    (1) IN GENERAL.--Not later than 10 days before a change of disposition under section 1031(c) is effected, the Secretary of Defense and the Director of National Intelligence shall notify and inform the specified congressional committees of such intended disposition.

    (2) REPORTING REQUIREMENT.--The notification required under paragraph (1) shall be in classified form and shall include the relevant facts, justification, and rationale that serves as the basis for the disposition option chosen.

    (c) Covered Persons.--For the purposes of this section, a covered person is a person who--

    (1) is a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

    (2) has participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

    (d) Specified Congressional Committees.--In this section, the term ``specified congressional committees'' means--

    (1) the Committee on Armed Services of the Senate;

    (2) the Committee on Armed Services of the House of Representatives;

    (3) the Select Committee on Intelligence of the Senate; and

    (4) the Permanent Select Committee on Intelligence of the House of Representatives.

    (e) Effective Date.--This section shall take effect 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (c) who are taken into the custody or brought under the control of the United States on or after that date.

For those who prefer watching/listening to reading, you can catch all the video on C-SPAN.