Op-Ed: Military Detainee Provision in Defense Authorization Bill

I have heard from many Alaskans about my vote for the Defense Authorization bill early this month. I want to take a few moments with you to discuss this vote and its meaning.

The Senate rarely comes together on a bipartisan vote of 93-7 on an issue of great controversy. Yet that occurred Dec. 1 on the fiscal 2012 National Defense Authorization Act. It reflected a deep-seated concern that al-Qaida remains a potent threat to the sense of security Americans take for granted. 

The question was whether an individual who is a member or associate of al-Qaida apprehended on American soil in the course of aggression against the United States could be treated as an enemy combatant or must be treated as a common criminal. The Senate bill holds that the individual should be presumed to be an enemy combatant and may be interrogated and detained as if captured on a foreign battlefield. However, it gives the president discretion to either prosecute the individual in the criminal justice system or interrogate and try the individual as an enemy combatant. The provision requires neither that all terrorists be tried by military commissions nor that all terrorists be tried in U.S. courts.

Most crucially, it does not state that American citizens who commit terrorist acts on U.S. soil — even those accused of collaboration with al-Qaida — will be tried by military commissions. Existing U.S. law prohibits that, and the Senate action does nothing to disturb it. However, U.S. citizens who collaborate with al-Qaida can be detained and interrogated by the military in the hope that they will provide valuable information that may protect Americans from future attacks.

Some would say military detention of citizens is simply unconstitutional. The U.S. Supreme Court repeatedly has reached the opposite conclusion, dating back to a case from World War II. The plot sounds like a Hollywood script. Nazi Germany attempted to insert eight saboteurs into America to attack war industries. One saboteur was an American. Four landed via a submarine off the coast of Long Island, N.Y., and the rest were discharged in Florida. Two surrendered and were turned over to the military for trial and sentencing. The remaining six were captured and executed after trial by military commission. In 1942, the Supreme Court reviewed the constitutionality of their treatment and decided “U.S. citizenship of an enemy belligerent does not relieve him from the consequences of that belligerency.” Similarly, the non-U.S. nationals who attempted to bring World War II to American soil were not relieved of the consequences of their actions. Their trial and sentence as enemy combatants was affirmed.

Our present-day fight against al-Qaida involves a different enemy than the one we fought in World War II — a non-state, non-uniformed enemy. But that is of little comfort to the friends and families of the 3,000 innocent people who died on Sept. 11, 2001, or those who nearly faced death aboard Northwest Airlines flight 253 on Christmas evening 2009. As my colleague Lindsay Graham noted in Senate debate, only luck prevented explosives in Umar Farouk Abdulmutallab’s underwear from detonating.

Since the Sept. 11 terrorist attacks, we have walked a fine line between protecting our security and defending our liberties. I have and will remain vigilant to ensure that the powers Congress provides to defend our country are not abused — and that clearly defined limits are put in place. The limitations on who falls under this legislation and the limits imposed upon the authorities were important to me in voting in favor of the bill.

Nothing in the bill would allow the military to detain a law-abiding American citizen at the local gun store or grocery store. This bill does not take away the rights of citizens or lawful permanent residents, including the right of habeas corpus (to appear before a judge to seek release). These sections do not take away an individual’s rights to equal protection under the 14th Amendment, nor do they take away one’s due-process rights under the Fifth or 14th amendments. If the bill did such things, I would have, without question, vigorously opposed it.

It was said long ago that eternal vigilance is the price of liberty. We must remain ever-watchful of those who threaten our freedoms, but also ever-mindful of the value of our individual liberties.