A Message from John Cornyn on Indefinite Detention

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Dear Mr. Perry:

Thank you for contacting me regarding the military detention and prosecution of terrorists. I appreciate having the benefit of your comments on this important matter.

I do not believe terrorists should be brought to the United States and granted the same rights and privileges as American criminal defendants. Terrorists should be kept at Guantanamo Bay and prosecuted through the military commissions established by Congress under the terms circumscribed by the United States Supreme Court. Trying to hold civilian trials in the United States for terrorists does nothing more than place Americans at risk, while providing terrorists with a platform from which to spew their hate-filled ideology and recruit like-minded fanatics around the world to join them in jihad. We must not forget that we are a nation at war against ruthless killers who wear no uniforms and deliberately target innocent civilians. Treating their war crimes as ordinary criminal acts and trying these killers in a civilian court under the U.S. Constitution would simply be reverting to a dangerous, pre-9/11 mentality.

As you may know, Congress passed the Military Commissions Acts of 2006 and 2009, making a powerful statement that U.S. civilian courts are not the appropriate venue to bring terrorists to justice. The military commissions were specifically designed to prevent damaging disclosures and to protect classified information, as well as sensitive sources and methods. We know that these military commissions have a long history in our Republic—dating back from the Revolutionary War and the Civil War, to World War II. They are the most appropriate forum for terrorists to be tried for their crimes. Furthermore, in its 2004 Hamdi v. Rumsfeld opinion, the Supreme Court recognized that, in accordance with longstanding principles under the law of war, an individual determined to be an enemy combatant, including a U.S. citizen, can be detained by the Executive Branch until the end of the military campaign against al Qaeda and affiliated terrorist groups.

Therefore, I supported amendments to the Senate version of the National Defense Authorization Act for Fiscal Year 2012 (FY 2012 NDAA; S. 1867) regarding terrorist detention practices. It is important to note that these provisions do not extend any new legal authorities to detain U.S. citizens, rather they clarify existing authorities as utilized by the President and recognized by the Supreme Court. Section 1021 of the final version of the FY 2012 NDAA (H.R. 1540) would reaffirm the President’s indefinite detention authority under the 2001 Authorization for Use of Military Force (P.L. 107—40). Additionally, Section 1022 would require military detention for a certain subset of unprivileged enemy belligerents—members of al Qaeda and affiliated entities—pending their disposition under the law of war. By its own terms, Section 1022 explicitly exempts U.S. citizens from the requirement for military detention. These provisions were originally included in the FY 2012 NDAA that was unanimously reported out of the Senate Armed Services Committee (SASC), and they remain in the final version of the FY12 NDAA that was passed by the House of Representatives and the Senate and signed into law by President Barack Obama on December 31, 2011.

I appreciate having the opportunity to represent you in the United States Senate. Thank you for taking the time to contact me.

Sincerely,
JOHN CORNYN
United States Senator

517 Hart Senate Office Building
Washington, DC 20510
Tel: (202) 224-2934
Fax: (202) 228-2856
http://www.cornyn.senate.gov