[Congressional Record Volume 157, Number 196 (Monday, December 19, 2011)]
[Extensions of Remarks]
[Page E2315]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




CONFERENCE REPORT ON H.R. 1540, NATIONAL DEFENSE AUTHORIZATION ACT FOR 
                            FISCAL YEAR 2012

                                 ______
                                 

                               speech of

                         HON. CHRIS VAN HOLLEN

                              of maryland

                    in the house of representatives

                      Wednesday, December 14, 2011

  Mr. VAN HOLLEN. Mr. Speaker, it is with great regret that I rise to 
oppose this Defense Authorization Conference Report. This is the first 
Defense Authorization Conference Report I have opposed since I was 
first elected in 2002.
  I cannot support this Conference Report because it limits the tools 
available to detain and prosecute terror suspects and could have the 
unintended effect of weakening our national security. As currently 
written, the language in the Report also creates potentially dangerous 
and costly confusion about the roles of the military and law 
enforcement officials during the arrest of terror suspects. At the same 
time, certain provisions leave open the possibility that innocent U.S. 
citizens could be wrongfully and indefinitely detained at the direction 
of the President without appropriate access to civilian courts.
  The mix of tools currently available to the Executive Branch has 
strengthened our national security. Civilian prosecutors and federal 
courts have convicted and imprisoned hundreds of terrorists, while the 
military tribunals have convicted only a half-dozen. Why would we want 
to tip the scales toward a less effective enforcement tool? Why tie our 
own hands?
  Sections 1021 and 1022 of the Report will generate confusion as to 
whether the military or the FBI and civilian law enforcement agencies 
have custody over terror suspects. Today, in testimony before the 
Senate Judiciary Committee, FBI Director Mueller expressed concern and 
uncertainty about the confusing directives in the Report that could 
cause misunderstandings between the FBI and the military regarding the 
detention of covered individuals during the crucial early moments of an 
arrest when information gathering is most important. He described an 
example where a terrorist arrest in a city like New York could cause 
unnecessary confusion and conflict between city law enforcement and the 
military because New York City is not a military controlled area. He 
also worries about how the situation would play out if a group of 
detainees--some covered, others not--are captured at the same time and 
what impact this might have on the handling of their cases.
  There is also much confusion about the indefinite detention authority 
in section 1021 of the measure. Some say that this section does not 
apply to U.S. citizens, but if that was the intention of the conferees, 
American citizens should have been specifically exempted the way they 
were in Section 1022 regarding mandatory military detention. The fact 
that American citizens were expressly exempted from mandatory military 
detention under section 1022--but not exempted under section 1021--
suggests that Congress is implicitly endorsing the idea that American 
citizens may be indefinitely detained under the Authorization for Use 
of Military Force. If Congress is going to spell out the rules of 
arrest and detention, it should have made clear that American citizens 
may not be indefinitely detained without due process of law.
  How U.S. citizens are to be treated when detained as terror suspects 
and the question of jurisdictional leadership during terror-related 
arrests are matters of such supreme national consequence that they 
should not have been expeditiously appended to a National Defense 
Authorization Conference Report. These important issues should have had 
the benefit of debate and close examination that can only happen during 
regular order.

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