Thank you for contacting me regarding controversial detainee provisions in the National Defense Authorization Act (FY12 NDAA) for Fiscal Year 2012 (H.R.1540).  I appreciate hearing your thoughts on this important topic.

As you may know, I am firmly opposed to several provisions in the FY12 NDAA that regulate the detention of terrorism suspects.  These provisions could be interpreted to authorize the indefinite military detention of American citizens who are suspected of involvement in terrorism, without charge.  The provisions would also expand the military’s role in domestic law enforcement operations by requiring that the Department of Defense assume responsibility for holding terrorism suspects, even if they are captured within the United States and held by the FBI, CIA or others.

I firmly believe that terrorism presents a serious threat to the United States.  As a member of the Senate Armed Services (SASC) and Intelligence committees, much of my attention is focused on keeping Americans safe, both at home and abroad.  I believe we must do what is necessary to keep the United States safe from terrorism, and we must make certain that those in custody are properly detained so that they cannot attack the United States or its citizens.  Nevertheless, our law enforcement, military and intelligence communities have spent more than a decade carefully and collaboratively determining the most effective methods to successfully capture and prosecute terrorists, and I believe these provisions may undermine that work.  Moreover, my views on these provisions are shared by the professionals who are actually in charge of waging the battle to keep us safe, including the Secretary of Defense, Director of National Intelligence and the directors of the FBI and CIA.

In an effort to resolve this debate in a way that protects both national security and our constitutional rights, I offered an amendment (S.Amdt.#1107) to strike the detention provisions and require the Departments of Defense, Homeland Security, Justice and State, as well as the Director of National Intelligence, to issue a joint report detailing the gaps in our detention policy.  Such a report would allow Congress to draft detention legislation that meets our national security needs and keeps faith with the guiding principles of our Constitution.

Unfortunately, the majority of my colleagues did not support this common-sense amendment.  However, because of the serious questions that were presented about the impact of these provisions, they were modified with some changes that seek to protect our constitutional liberties and prevent the disruption of domestic counterterrorism efforts.  Even with these changes, I remain unconvinced of the benefit of these provisions and believe that the best course of action would be to separate them from the defense authorization bill and take the time to make sure that we are effectively balancing our counterterrorism needs and the constitutional freedoms of American citizens.

Despite my objections, I believe the U.S. Senate has a solemn obligation to our men and women in uniform to pass a National Defense Authorization Act.  As a proud member of SASC, I understand the importance of the bill and its impact on our military.  While I continue to have serious reservations about the detention provisions, and sought to separate them from the defense authorization bill at every juncture, I made the difficult decision to vote yes on the FY12 NDAA.   This bill is critically important to our military, and I couldn’t in good conscience vote against legislation that provides the pay raises, training and equipment that our men and women in uniform deserve.

I sincerely believe that the debate on these provisions is not over, and there is much work left to do.  I intend to hold this administration and any further administration accountable for the implementation of these provisions, and am committed to my constitutional mandate to conduct oversight over their use.  In conclusion, I believe that we owe it to our men and women in uniform to pass a defense authorization bill, though we also owe the American people a full and honest debate about national security strategy on how best to keep us safe and protect the Constitution we have taken an oath to uphold.  Rest assured I will keep your views in mind as Congress continues to consider these critical issues.

I will continue to listen closely to what you and other Coloradans have to say about matters before Congress, the concerns of our communities, and the issues facing Colorado and the nation.  My job is not about merely supporting or opposing legislation; it is also about bridging the divide that has paralyzed our nation’s politics.  For more information about my positions and to learn how my office can assist you, please visit my website at www.markudall.senate.gov.
Warm regards,

Mark Udall
U.S. Senator, Colorado