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Washington, Dec 15, 2011 - 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.