I know this bill is not perfect; in fact, I proposed 2 Amendments to prevent the [US] President from transferring foreign terrorists to the US to be prosecuted in the federal court system, and I joined with Senators DeMint, Coburn, and Lee to vote against cloture. However, in regard to the assertions that this bill allows the US military to supplant our local police departments or that it allows the federal government to detain otherwise law abiding citizens for simply carrying on in their daily lives, those assertions are entirely unfounded. This bill does NOT overturn the Posse Comitatus Act. If this bill did such a thing, I would strongly oppose it.
The full Press Release:
Senator Rubio’s Statement for the Congressional Record
Mr. President, some people are wrongly suggesting that the National Defense Authorization Act for Fiscal Year 2012 this legislation will allow the military to capture and indefinitely detain any American citizen, and that the US Armed Forces would be able to perform law enforcement functions on American soil because of the authority conferred under Sections 1031 and 1032 of the Act.
Several people have asked about my votes on the National Defense Authorization Act for Fiscal Year 2012. In particular, some people are wrongly suggesting that this legislation will allow the military to capture and indefinitely detain any American citizen, and that the US Armed Forces would be able to perform law enforcement functions on American soil because of the authority conferred under Sections 1031 and 1032 of the Act. While I do have other serious concerns with this legislation, those particular assertions could not be further from the truth. I want to take this time to explain what the law actually does, what my position is on these issues, and why I joined with Senators DeMint, Coburn and Lee to vote for those specific sections, but against cloture on the final bill.
Section 1031 of this act merely affirms the authority that the president already has to detain certain people pursuant to the current Authorization for Use of Military Force; in fact, this same section of the bill specifically states that nothing stated in Section 1031 is intended to expand the president’s power. In addition, this section sets specific limits on who can be detained under this act to only those people who planned or helped carry out the 9/11 attacks on the United States or people who are a member of, or substantially support, Al-Qaeda, the Taliban, or their respective affiliates. There is no language that could possibly be construed as repealing the Posse Comitatus Act and allowing the US military to supplant your local police department in carrying out typical law enforcement activities.
In particular, some folks are concerned about the language in Section 1031 that says that this includes “any person committing a belligerent act or directly supported such hostilities of such enemy forces.” This language clearly and unequivocally refers back to Al-Qaeda, the Taliban, or its affiliates. Thus, not only would any person in question need to be involved with Al-Qaeda, the Taliban, or its surrogates, but that person must also engage in a deliberate and substantial act that directly supports their efforts against us in the war on terror in order to be detained under this provision. There is nothing in this bill that could be construed in any way that would allow any branch of the military to detain a law-abiding American citizen if you go to the local gun store or grocery store. What this section of the bill does is help provide for our national security by giving clarity to the military in regard to its authority to detain people who have committed substantially harmful acts against the United States. This is extremely important given that there are Al-Qaeda cells currently operating within our borders. I would not leave the risk of a terrorist attack that could claim the life of a member of my family up to chance, and I will not leave that risk for your family either.
Section 1032 of this bill concerns a smaller group of people who Congress feels are required to be detained by the US military because people who fit within this criteria are a more serious threat to our national security. Any person detained under Section 1032 must be a member of, or part of, Al-Qaeda or its associates AND they must have participated in the planning or execution of an attack against the US or our coalition partners. Simply put, the application of this detention requirement is limited to Al-Qaeda members that have tried to attack the US or its allies. However, this detention requirement is clearly limited by a clause that states that the requirement to detain does not extend to US citizens or lawful permanent residents.
Together, these two sections do the following: they affirm the authority of the executive branch to act within our national interest and they provide the federal government with the tools that are needed to maintain our national security. This bill does NOT overturn the Posse Comitatus Act; the military will not be patrolling the streets. This bill does not take away your rights as a citizen or lawful permanent resident; the authority under this act does not take away one’s habeas rights. These sections do NOT take away an individual’s rights to equal protection under the 14th Amendment to the US Constitution, nor do they take away one’s due process rights afforded under the 5th or 14th. If this bill did such a thing, I would strongly oppose it.
I want to thank everyone for reaching out to the office to voice your concerns on this bill. I want to assure you that I always have, and always will, listen to your concerns and address them in a timely fashion. I know this bill is not perfect; in fact, I proposed 2 Amendments to prevent the President from transferring foreign terrorists to the US to be prosecuted in the federal court system, and I joined with Senators DeMint, Coburn, and Lee to vote against cloture. However, in regard to the assertions that this bill allows the US military to supplant our local police departments or that it allows the federal government to detain otherwise law abiding citizens for simply carrying on in their daily lives, those assertions are entirely unfounded. As always, if you have any other questions, please feel free to contact me.
Subtitle D–Detainee Matters
SEC. 1031. AFFIRMATION 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- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).
SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(a) Custody Pending Disposition Under Law of War-
(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–
(A) to be 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
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.
(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(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.
(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
(c) Implementation Procedures-
(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.
(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.
(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.
U.S. Code Title 10 Chapter 47A http://uscode.house.gov/download/pls/10C47A.txt
Title XVIII Public Law 111-84 http://thomas.loc.gov/cgi-bin/query/F?c111:6:./temp/~c111ljjjRh:e12…:
Public Law 107-40 http://thomas.loc.gov/cgi-bin/query/D?c107:3:./temp/~c107Fvd7l7::