Steven G. Bradbury, the head of the Justice Department’s Office of Legal Counsel during the George W. Bush administration, argued Wednesday in favor of the controversial legislation that many interpret as authorizing the indefinite detention of American citizens if suspected of terrorism by the military.
Bradbury testified before the Senate Judiciary Committee Wednesday as part of a larger discussion of the National Defense Authorization Act — signed by President Barack Obama in December — and a secondary bill introduced by Sen. Dianne Feinstein (D-Calif.) that would limit the NDAA’s power.
Bradbury argued that the NDAA will give the president, as commander in chief, flexibility in dealing with homegrown terrorists in very rare occasions. Bradbury went as far as to say if he were the current head of OLC, he would recommend the executive branch oppose the enactment of Feinstein’s bill, known as the Due Process Guarantee Act.
“If we capture on our soil a U.S. citizen or lawful permanent resident who is such an enemy recruit and has been actively involved in carrying out or otherwise aware of an unfolding plot by a foreign power against the United States, this proposed legislation could seriously impede our ability to gather critical intelligence from that combatant through military questioning,” Bradbury told the committee. “By requiring that criminal charges be brought against the detainee as a condition of this continued detention, the [Due Process Guarantee Act] would threaten to disrupt the practical opportunity to conduct such intelligence gathering.
Sen. Patrick Leahy (D-Vt.), chairman of the committee, said the NDAA goes too far in giving the military the ability to indefinitely detain American citizens without charges or trial.
“A regime of indefinite detention degrades the credibility of this great nation around the globe,” the Vermont Democrat said. “Indefinite detention contradicts the most basic principles of law that I have pledged to uphold since my years as a prosecutor and in our senatorial oath to defend the constitution.”
Leahy said he supports Feinstein’s proposed legislation, which would amend that act by adding the subsection: ”An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resdient of the United States apprehended in the United States, unless and Act of Congress expressly aurhtorizes such detention.”
But Bradbury said the ability to keep an enemy combatant in military detention is a right of any sovereign nation that is recognized under the rules of war.
Sen. Lindsey Graham (R-S.C.) reminded the committee that many agree that the War on Terror is not just abroad, it is afoot on American soil. Given that, he said, rules of war should be applied to those deemed enemy combatants within the country. He said when a suspected terrorist is apprehended, it is a “golden opportunity” to gain intelligence.
“The homeland is part of the battlefield,” Graham said. “I want to make sure we have a legal system that understands the difference between fighting a crime and fighting a war.”
Sen. Al Franken (D-Minn.) made it a point, however, to put into the record Bradbury’s past connection with the infamous “torture memos.” Franken called Bradbury’s opinions on the NDAA into question in light of the 2010 Office of Professional Responsibility report that detailed the misconduct by Bush-era lawyers who authored the memos, which authorized brutal interrogation techniques of suspected terrorism suspects. The office found that while Bradbury should have examined the issues with a keener eye, his conduct did not rise to the level of professional misconduct.
Before the NDAA was signed into law, Attorney General Eric Holder and FBI Director Robert Mueller were vocal critics, advocating instead for legal jurisdiction to be left with federal prosecutors and investigators, rather than the military.