Conference Report on H.R. 1540, National Defense Authorization Act For Fiscal Year 2012

Floor Speech

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Mr. SMITH of Washington. Mr. Speaker, I yield myself 3 minutes.

I, too, want to thank the chairman, Mr. McKeon. We always say that our committee is the most bipartisan committee in Congress. We strongly believe that. Republicans and Democrats on that committee are committed to doing our job, which is to provide for the troops and make sure that our national security is protected in this country.

Mr. McKeon was an excellent partner to work with. It's a model for what happens when you sit down and try to legislate together, and something that I think could be emulated by many more committees and on many more issues.

So, thank you, BUCK. It's been great working with you on this. I think we've produced a good product.

I want to, upfront, address the issue that most people have focused on in the rule and elsewhere, and that is the issue surrounding detainee policy. I have never seen an issue that was more distorted in terms of what people have said is in the bill versus what is actually in the bill. Number one, habeas corpus is protected, not touched in this bill. Pursuant to court rulings, anyone picked up pursuant to the authorization

for the use of military force, has habeas corpus rights. That is not touched categorically.

Now I understand that a lot of people have a problem with what is current law, and current law is something we've been debating ever since 9/11. Both the Bush administration and the Obama administration have taken the position that indefinite detention is an option. In two cases before the Supreme Court, the Hamdi case most notably, a U.S. citizen was briefly subject to indefinite detention. The Fourth Circuit Court upheld that right. That is current law. And I actually share some of the concerns amongst my colleagues about that current law.

But this bill doesn't affect that. We, in fact, make it clear in our category on military detention that it is not meant to apply to U.S. citizens or lawful resident aliens. Read the bill. It is in there. Nothing in this section shall apply to U.S. citizens or lawful resident aliens.

Now if you have a problem with indefinite detention, that is a problem with current law. Defeating this bill will not change that, won't change it at all. But I'll tell you what it will do. It will undermine the ability of our troops to do their job, to do what we've asked them to do. If we defeat this bill, we defeat a pay raise for the troops, we defeat MILCON projects for the troops, and we defeat endless support programs that are absolutely vital to their doing their jobs. And I don't think I need to remind this body that 100,000 of those troops are in harm's way in Afghanistan right now facing a determined enemy in the middle of a fight. It is not the time to cut off their support over an issue that isn't going to be fixed by this bill.

And let me emphasize that just one more time. Current law as interpreted by the Bush administration, the Obama administration, and the judiciary of this country creates the problems that everybody is talking about, not this bill. We put language in on detention policy because we think it's about time the legislative branch at least said something on the subject. But we are not the ones that created that problem.

I urge support for this bill.

The SPEAKER pro tempore. The time of the gentleman has expired.

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Mr. SMITH of Washington. I yield myself an additional 30 seconds.

One issue I want to address is the issue of military construction projects for Guam. There is some limiting language in this bill on that issue based on the fact that the Department of Defense is rethinking their posture in Asia between Okinawa, Guam, and other places. One thing I want to make clear is that Guam is a critically important part of our Asia presence. They have presence of our military there now. The language in the bill is not meant to cut off existing military construction projects or indeed other ones that may not be related to this. I want to make sure that that's clear.

With that, I reserve the balance of my time.

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Mr. SMITH of Washington. First of all, let me say we had hearings on this last February and March. We had language in our bill which we passed in May. This issue has been thoroughly debated. Now, I've heard a couple of times that the Judiciary Committee has not heard this issue. This has been going on for 10 years under both Democratic and Republican control. I don't know why the Judiciary Committee has not chosen to have hearings on this issue, but that's hardly our fault. We have. We've had endless discussions on this. It has, in fact, been debated.

And let me also say that I am very concerned about these very issues. On our committee, I have been one of the strongest voices of concern. I support closing Guantanamo. I know a lot of people don't. I think we should have all of the suspects here in the U.S. and that we should try them. I also strongly believe that the criminal justice system has to be part of how we combat al Qaeda. I have heard the argument. People say, this is a war, not a criminal matter. Why are we bothering with things like article III courts? I disagree with that and have spoken out publicly and strongly and in many cases even when popular support has been on the other side of issues like closing of Guantanamo.

I care deeply about this issue; and from the very start, I fought hard to protect precisely the things Mr. Nadler is referencing. I fought hard in the conference committee to make sure they were protected, and they were.

Now the argument is we don't know exactly what it means; so, therefore, we should do nothing. It is very true that law is unsettled. That, again, has nothing to do with this bill. There are court cases ongoing; there are habeas corpus cases continuously happening as a result of Guantanamo; and it's being interpreted by courts and also by the executive branch. I want to make it also clear that the judiciary and the executive branch would always rather that we do nothing. They would always rather forget that we are supposed to be a coequal branch of government, but we are.

After 10 years and after countless hearings, the legislative branch should say something about this. And what we said we said very, very carefully to simply codify what the executive branch and the judiciary have said about the AUMF and to make absolutely clear--and this language is not ambiguous--that military custody in the U.S. does not apply to U.S. citizens and does not apply to lawful resident aliens.

Again, the problems that people have--and I share some of them--are with existing law, not with this bill. Defeat this bill, and it won't change a piece of that existing law that we've heard about and that we should all be concerned about. But defeat this bill, and it will make it very difficult for our troops to get the support they need.

Now, I've been around this process long enough to know that there ain't no guarantee of fixing anything. And if we defeat this bill, our troops will be left to wonder if they're going to get that pay raise, if those military support projects are going to get built, if our troops are going to get the support they need. And I don't know the answer to that question.

So there's a ton of very, very good stuff in this bill that supports our troops, that addresses Members' concerns on issues like sexual assault within the military and a whole host of others. We need to support this bill to support our troops.

And the issues that folks are concerned about on detention, again, that is existing law. Whether this bill passes or not, those controversies will continue.

This is an excellent piece of legislation, well-crafted and worked hard by a lot of folks. It deserves an overwhelming ``yes'' vote.

With that, I urge passage and I yield back the balance of my time.

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