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Toomey responds to my NDAA indefinite detention concerns
Dear Nate,
Thank you for contacting me about detainee provisions in the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (S. 3254) passed by the Senate on December 4, 2012. I appreciate hearing from you.

As you may know, Senator Dianne Feinstein (D-CA) introduced an amendment to S. 3254 which stated that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention of a citizen or lawful permanent resident of the U.S. I understand your concerns with Americans being detained. However, I think it is necessary to detain dangerous terrorists until the Global War on Terror is over in order to prevent them from returning to the battlefield and killing Americans.

One of my most important responsibilities as a Senator is protecting the American people and defending the United States from our enemies. In spite of our successes against al-Qaeda during the post-September 11 era, we unfortunately still face serious threats from hostile nations and terrorists who want to kill Americans. It is critical that the federal government have the resources and powers to counter these threats, including the longstanding authority to detain enemy combatants who take up arms against the United States and remove them from the battlefield where they can do harm.

I also realize that, at times, there is a natural tension between our national security needs and our civil liberties, which are also vitally important. In such instances, Congress has an obligation to respect constitutional protections and appropriately balance these two aims. I believe that current law regarding military detention policies appropriately reflects this balance and is constitutional.

There are many misconceptions about the current law. First, when enacted as part of the Fiscal Year 2012 NDAA, it did not expand existing authorities governing detainees in military custody. Additionally, it does not allow the military to arrest people within the United States. It also does not permit Americans to be tried by military commissions.

Second, the military detention provisions of current law apply only to those who are part of, or substantially support, "al-Qaeda, the Taliban, or associated forces" that are engaged in hostilities against the United States or its coalition partners. The courts have interpreted the term "associated forces" only to cover armed groups assisting the Taliban or Al Qaeda in Afghanistan. The terminology has nothing to do with any other entity. Under these provisions, such enemy combatants can be transferred from civilian to military custody. Such transfers are a reasonable national security measure. For instance, the criminal justice system is not set up to gather and protect intelligence and to give authorities the maximum tools consistent with our laws and values to obtain this information. Current law also gives the administration waiver authority to hold American citizens in civilian custody if it determines that would best serve national security.

Third, at the time that the current law was enacted, the Administration already had the constitutional authority to indefinitely detain American citizens in military custody if they were enemy combatants. This authority goes back to at least World War II, if not earlier. As Supreme Court Justice O'Connor wrote in Hamdi v. Rumsfeld (2004), "there is no bar to this Nation's holding one of its own citizens as an enemy combatant." This 2004 ruling is consistent with the 1942 Supreme Court Ex Parte Quirin ruling that stated, "Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of belligerency." In other words, the detention of American citizens who join enemy armed forces and take up arms against their own country has been deemed constitutional through nearly seventy years of Supreme Court jurisprudence.

Fourth, should an American be detained by the military as an enemy combatant, current law maintains legal safeguards and provides due process to ensure that he or she is not being held unlawfully. In particular, the law does not impair his or her constitutional right to challenge the detention in federal district court by petitioning for a writ of habeas corpus. Detainees can also appeal the district court's ruling, conceivably up to the U.S. Supreme Court.

Lastly, we should not overlook why military detention is sometimes required and has been lawfully used by the military in the past to protect Americans. The purpose of detaining enemy combatants for as long as necessary is to keep them from returning to the battlefield and killing Americans there. Many former detainees, when released, have already resumed combat against America. Director of National Intelligence James Clapper testified that the re-engagement rate for transferred Guantanamo terrorist detainees had risen to 27 percent - an all-time high. Additionally, in March 2011, when General James Mattis, the Commander of U.S. Central Command, was questioned about this re-engagement rate, he described it as "a big concern" that "reinforces the enemy."

I understand your views regarding the current law governing the detainment of enemy combatants. As I noted earlier, there is a critical and sometimes difficult balance between protecting national security and the American people from the serious threat of terrorism, while at the same time protecting civil liberties under the constitution. This is why my decision to oppose the 2012 Feinstein amendment was a difficult one and required much consideration.

Moving forward, it is important that Congress maintain vigorous oversight over the Administration's use of military detention to ensure that the powers under current law are only being used when lawful and do not undermine the constitutional protections we all enjoy. For that reason I cosponsored a Senate amendment that would impose rigorous reporting requirements on the administration requiring them to inform Congress in great detail about every person who is being detained to include their names, nationalities, dates and places of capture, suspected terrorist affiliations and agencies responsible for interrogation. The purpose of the amendment was to help ensure that the administration's powers of detention are never abused.

Thank you again for contacting me. I appreciate your thoughts on this important issue. Please do not hesitate to contact me in the future on other matters of concern.



Pat Toomey
U.S. Senator, Pennsylvania
TheWolff, proud to be a member of since Sep 2012.

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