(Update: For those who are looking for a 'diary-length' diary, I suggest you skim the bold-faced text. This is essentially intended as a resource diary, to provide a source for materials that are not readily available in any other forum that I could find.)
I had to search high and low for the actual language of the amendments offerred and made to the Senate bill titled National Defense Authorization Act (S.1867) relating to the controversial Section 1031 (and 1032).
SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
This diary is offerred essentially as a resource, a repository for the text of the amendments, debate and roll call votes relating to this issue since it seems so damned difficult to find them even when you're somewhat used to looking for this kind of thing. I have done my best to be accurate and provide links, but please review the original sources for anything definitive you may be doing.
A quick summary of what was considered and what passed is immediately below. I then provide the excerpt of the Congressional Record report of the debate, the competing amendment texts (including Udall's) and an excerpt of the two Sections of the bill that are causing all the fuss.
Hope this is useful.
In summary - Sen. Feinstein offered and obtained a roll call vote on two amendments on this issue that I'll focus on:
No. 1456
(The 'compromise' amendment.)
On p 360, between lines 21 and 22, insert the following:
(e) Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
And her previously introduced amendment No. 1126.
The Senator from California [Mrs. Feinstein] proposes en bloc amendments numbered 1125 and 1126.
The amendments are as follows:
(Purpose: To clarify the applicability of requirements for military custody with respect to detainees)
On page 361, line 9, insert ``abroad'' after ``is captured''.
This amendment was described in debate as limiting the authority (existing or as otherwise given by this bill - depending on your opinion as the current state of the law) relating to detention of American citizens.
I'm a bit confused because No 1126 (the amendment voted on) appears to amend only Section 1032 of the NDA Act, which has been interpreted at least by some as applying only to the 'mandatory' detention aspects of the bill compared to the 'permissive authority' asserted to be added by Section 1031.
It's interesting that the compromise amendment was placed in Section 1031.
As described by Sen. Feinstein, this appears to be the nub of the difference between the various sides (see full debate below):
The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ``the end of the hostilities'' which, in my view, is indefinitely.
Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.
So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide.
So in response to the Sponsor's assertions that Section 1031 did not change the existing law, the Amendement says just that.
Of course, one wonders why the existing law needed to be restated by Section 1031, if no change was intended (or no question of interpretation was meant to be resolved) by the new lanugage, because a legislative body is presumed to have some reason for including the language it includes in bills it passes and merely 'restating' existing law is rarely viewed as reason for new law (unless they're "recodifying" the law - moving it around and/or renumbering it.)
National Defense Authorization Act
http://thomas.loc.gov/...
Unfortunately, the links to the Library of Congress
"Thomas" site have always been something of a mystery. It seems that they are not static, but change with the search, so you may have to go to the main bill page above and select
All Congressional Actions with Amendments
With links to Congressional Record pages, votes,reports
to review some or all of the original sources linked below.
Debate on Feinstein Amendments
http://thomas.loc.gov/...
http://thomas.loc.gov/...
http://thomas.loc.gov/...
No. 1126 and Udall amendment:
http://thomas.loc.gov/...
http://thomas.loc.gov/...
The debate:
I have added emphasis through use of bold and italics to sections that stood out to me, they have not more or less importance or effect than any others.
AMENDMENT NO. 1126
Mr. LEVIN. I thank the Presiding Officer and all those who have been involved in working out this approach that allows us now to vote on two amendments, the original Feinstein amendment that is pending, plus an alternative which I think, hopefully, will command great support.
Mr. McCAIN. I ask how much time is remaining?
The PRESIDING OFFICER. Eight minutes on each side.
Mr. McCAIN. I wish to give 3 minutes to the Senator from South Carolina, preceded by 2 minutes from the Senator from Idaho, and 2 minutes for the Senator from New Hampshire if she arrives.
Mrs. FEINSTEIN. Shall I go first?
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I wish to explain what has happened this long afternoon. Originally some of us, namely Senators Leahy, Durbin, Udall of Colorado, Kirk, Lee, Harkin, Webb, Wyden, Merkley, and myself, realized that there was a fundamental flaw in section 1031 of the bill.
There is a difference of opinion as to whether there is this a fundamental flaw. We believe the current bill essentially updates and restates the authorization for use of military force that was passed on September 18, 2001. Despite my support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this.
The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ``the end of the hostilities'' which, in my view, is indefinitely.
Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.
So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide.
Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:
On page 360, between lines 21 and 22, insert the following:
Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
I believe this meets the concerns of the leadership of the committee and this is presented as an alternative. There are those of us who would like to vote for the original amendment, which I intend to do, as well as for this modifying amendment. They will appear before you as a side-by-side, so everyone will have the chance to vote yea or nay on the original or yea or nay on the compromise. As I said, I would urge that we vote yes on both.
This is not going to be the world as we see it postvote, but I will tell you this, the chairman and the ranking member have agreed that the modified language presented in the second vote will be contained in the conference; that they will do everything they can to contain this language in the conference.
[Page: S8123] GPO's PDF
In the original amendment--my original amendment--which affects only U.S. citizens, that is not the case. They are likely to drop that amendment. So I wish to make the point by voting for both, and I would hope others would do the same. I think a lot has been gained. I think a clear understanding has been gained of the problems inherent in the original bill. I think Members came to the conclusion that they did not want to change present law and they wanted to extend this preservation of current law not only to citizens but to legal resident aliens as well as any other persons arrested in the United States. That would mean they could not be held without charge and without trial. So the law would remain the same as it is today and has been practiced for the last 10 years.
I actually believe it is easy to say either my way or the highway. I want to get something done. I want to be able to assure people in the United States that their rights under American law are protected. The compromise amendment, which is the second amendment we will be voting on, does that. It provides the assurance that the law will remain the same and will not affect the right of charge and the right of trial of any U.S. citizen, any lawful legal alien or any other person in the United States. We have the commitment by both the chairman and the ranking member that they will defend that in conference.
There are those who say I wish to just vote for the original amendment. That is fine. I am not sure it will pass. I don't know whether it will pass, but in my judgment, the modification is eminently suitable to accomplish the task at hand and has the added guarantee of the support of the chairman, the ranking member in a conference committee with the House, which I think is worth a great deal. They have given their word, and I believe they will keep it. This Record will reflect that word.
AMENDMENT NO. 1456
I call up my amendment No. 1456, which is the modification.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Feinstein] proposes an amendment numbered 1456.
Mrs. FEINSTEIN. I ask unanimous consent that the reading of the amendment be dispensed with.
There are others who wish to speak.
The amendment is as follows:
On p 360, between lines 21 and 22, insert the following:
(e) Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
I will yield the floor.
Mr. LEVIN. How much time is there on our side?
The PRESIDING OFFICER. One minute.
Mr. LEVIN. I wanted to have a couple minutes. I wonder if Senator McCain is here, if there is an objection to extending this by 10 minutes. Is there objection? I am not going to do that without him here.
Madam President, if the other side is ready to go, they can start using the time on their side.
Mr. GRAHAM. How much time do we have?
The PRESIDING OFFICER. Eight minutes. You were allotted 3 minutes.
Mr. GRAHAM. Will the Chair warn me when I use 2 minutes.
The PRESIDING OFFICER. Yes.
Mr. GRAHAM. To Senator Feinstein, I do believe the second provision is where we want to be, at least from my point of view. To my colleagues, I never intended by 1031 to change the law imposing a greater burden on American citizens or more exposure to military detention, nor did I wish to have additional rights beyond what exist today. The problem I have with Senator Feinstein's amendment is it says the authority in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of hostilities.
Here is my concern. When you tell a judge, as a defense attorney: I want my client's rights preserved regarding a civilian trial guaranteed in this section--and the end of hostilities could be 30 years from now--Your Honor, if these rights mean anything, they need to attach now--if the civilian rights attach immediately upon detention, what I think would be a problem is that the military interrogation is lost. American citizens are not subject to a military commission trial. A lot of people on my side didn't like that.
I do want to make sure American citizens go into article III courts, but the law has been since World War II, if a person joins the enemy, even as an American citizen, they are subject to being detained for interrogation purposes. That is my goal and that has always been my goal. We can detain an American who has sided with al-Qaida, if they are involved with hostile acts, to gather intelligence, and that is a proper thing to have been doing. It was done in World War II when American citizens helped the Nazis. If an American citizen wants to help al-Qaida involved in a hostile act, then they become an enemy of this Nation. They can be humanely detained, and that is my concern about the Senator's amendment; that it would take that away.
We have common ground on the second amendment, and at the end of the day, the Senate has talked a lot about different things. This has been a discussion about something important and I, quite frankly, enjoyed it.
I yield my time.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. RISCH. First of all, let me say I think there has been an adequate compromise that has been reached, and we are to have a side-by-side to vote on which will give everybody the opportunity to express themselves. Let me say that every single one of us on this floor has a goal to protect the rights of U.S. citizens.
This country was founded by people who had just gone through some very difficult times with a government that was very oppressive on them, and they wrote the Constitution specifically to protect themselves and to protect individuals from the government. Those constitutional provisions today are as good as they were then. Every single one of us wants to see that American citizens are protected; that is, protections that take place in the case of criminal cases.
In the case of a war, in the case where a U.S. citizen joins enemy combatants and fights against the United States, there is a different standard--although a delicate division--that exists. If we look at the provisions of section 1031, where covered persons are defined, it is very clear it applies only to people who participated in the September 11, 2001, attack on the United States, and it applies to people who are part of it or who have substantially supported al-Qaida and the Taliban or its associated forces and have actually committed a belligerent act or have directly participated in the hostilities.
This is drawn very carefully and very narrowly so a U.S. citizen can--as my good friend from Kentucky always says--be able to file a writ of habeas corpus in the U.S. district court and have the U.S. district judge determine whether a person is actually an enemy combatant. If that U.S. district judge turns it down, that person does not necessarily go free. The U.S. Government can then charge them with treason or any one of a number of crimes, but they will be tried in the U.S. district court.
On the other hand, if they are found to be an enemy combatant by a U.S. district judge whose decision is reviewable by the circuit court and if the Supreme Court chooses--by the Supreme Court, if they are found to be the enemy combatant, then they will, indeed, be subject to this.
So this has been very narrow. People who are watching this and who are concerned about the civil liberties of U.S. citizens, as I am, as people in Idaho are, as people in every State in America are, under those circumstances, those people will be well protected. We will have the amendment here that everybody will have the opportunity to express themselves on.
I will yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. LEVIN. Mr. President, I would ask that there be 5 additional minutes, evenly divided, so we could have 3 minutes left on our side. I would split that with the Senator from Illinois.
The PRESIDING OFFICER. Is there objection?
[Page: S8124] GPO's PDF
Mr. RISCH. We have no objection.
Mr. LEVIN. Mr. President, we are soon going to be voting on two amendments. The first amendment that is proposed, the first Feinstein amendment restricts the authority that was available and is available currently to the President of the United States under the laws of war. That authority is if an American citizen joins a hostile Army against us, takes up arms against us, that person can be determined to be an enemy combatant. That is not me saying that; that is the Constitution. That is the Supreme Court of the United States in the Hamdi case: ``There is no bar to this Nation's holding one of its own citizens as an enemy combatant.''
The problem with the Feinstein amendment is that current authority of the President to find and designate an American citizen who attacks us, who comes to our land and attacks us as an enemy combatant would be restricted. We should not restrict the availability of that power in the President. Now we have an alternative. In the second Feinstein amendment, which I ask unanimous consent to be a cosponsor of--
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. In the second amendment, we have an alternative because now it would provide the assurance that we are not adversely affecting the rights of the U.S. citizens in this language. Senator McCain, Senator Graham, and I have argued on this floor that there is nothing in our bill--nothing which changes the rights of the U.S. citizens. There was no intent to do it, and we did not do it.
What the second Feinstein amendment provides is that nothing in this section of our bill shall be construed to affect existing law or authorities relating to the detention of the U.S. citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
It makes clear what we have been saying this language already does, which is that it does not affect existing law relative to the right of the executive branch to capture and detain a citizen. If that law is there allowing it, it remains. If, as some argue, the law does not allow that, then it continues that way. We think the law is clear in Hamdi that there is no bar to this Nation holding one of its own citizens as an enemy combatant, and we make clear whatever the law is. It is unaffected by this language in our bill.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I wish to thank my colleagues, Senators Graham and Levin, and particularly Senator Feinstein for working so hard to come to an agreement on section 1031. I was concerned that the United States would, for the first time in the history of this country, with the original language, authorize indefinite detention in the United States. But we have agreed to include language in this bill with the latter amendment that makes it clear that this bill does not change existing detention authority in any way.
It means the Supreme Court will ultimately decide who can and cannot be detained indefinitely without a trial. To this day, the Supreme Court has never ruled on the question of whether it is constitutional to indefinitely detain a U.S. citizen captured in the United States. Some of my colleagues see this differently, but the language we have agreed on makes it clear that section 1031 will not change that law in any way. The Supreme Court will decide who will be detained; the Senate will not.
I ask unanimous consent to be added as a cosponsor to the second pending amendment by Senator Feinstein.
The PRESIDING OFFICER. Without objection, it is so ordered.
All time has expired on the majority side.
Mr. GRAHAM. How much time do we have remaining?
The PRESIDING OFFICER. There is 4 1/2 minutes remaining.
Mr. GRAHAM. Mr. President, I would like to take the opportunity to end what I think has been a very good debate. Senator Feinstein--and I know she is busy--said something on the floor that I wish to reiterate: that the second amendment which Senator Durbin just suggested we have reached a compromise on, I am fully committed to making sure it stays in the conference report. Some folks in the House may have a problem, but I think it is good, sound law.
The goal for me has never been to change the law, to put an American citizen more at risk than they are today. It is just to keep the status quo and acknowledge from the point of view of the Congress that the Obama administration's decision to detain people as enemy combatants lies within the President's power to do so. The Court has said in In re Quirin and in the Hamdi case that at a time of war the executive branch can detain an American citizen who decides to collaborate with the Nazis, as well as al-Qaida, as an enemy combatant. They can hold them for interrogation purposes to collect intelligence. We don't have to take anybody into court and put them on trial because the goal is to protect the Nation from another attack.
The law also says no one, including an American citizen, can be held indefinitely without going to an article III court. Every person determined to be an enemy combatant by the executive branch has to have their case presented to an independent judiciary, and the government has to prove to a Federal judge by a preponderance of the evidence that they fall within this narrow exception. The government has lost about half the cases and won about half the cases.
My concern with Feinstein 1 is that it would change the law; that the law would be changed for the first time ever, saying we cannot hold an American citizen who has collaborated with the enemy for intelligence gathering purposes. I think homegrown terrorism is growing. If an American citizen left this country and went to Pakistan, got radicalized in a madrasah, came back and started trying to kill Americans, I think we should have the authority to detain them as with any belligerent, just like in World War II, and gather intelligence as to whether somebody else may be coming.
So that is what I want to preserve. With all due respect to Senator Feinstein, I think her first amendment very much puts that in jeopardy. It is going to be confusing, litigation friendly, so let's just stay with what we believe the law is.
As to Senator Durbin, he has one view, I have another, but we have a common view; that is, not to do anything to 1031 that would change the law. The ultimate authority on the law is not Lindsey Graham or Dick Durbin, it is the Supreme Court of the United States. That is the way it should be, and that is exactly what we say here. We are doing nothing to change the law when it comes to American citizen detention to enhance it or to restrict whatever rights the government has or the citizen has. I think that is what we need to say as a nation.
One last word of warning to my colleagues, the threats we face as a nation are growing. Homegrown terrorism is going to become a greater reality, and we need to have tools. Law enforcement is one tool, but in some cases holding people who have decided to help al-Qaida and turn on the rest of us and try to kill us so we can hold them long enough to interrogate them to find out what they are up to makes sense. When we hold somebody under the criminal justice system, we have to read them their rights right off the bat under the law or we don't because the purpose is to gather intelligence. We need that tool now as much as at any other time, including World War II.
Thank you all for a great debate. I hope we can vote no on Feinstein 1 and have a strong bipartisan vote on Feinstein 2.
With that, I yield the floor.
The PRESIDING OFFICER. Is all time yielded back?
Mr. GRAHAM. If anybody wishes to speak, speak now.
All time is yielded back.
The PRESIDING OFFICER. Under the previous order, the question is on amendment No. 1126 offered by the Senator from California.
Mr. LEVIN. Could I just interrupt with a unanimous consent request that prior to each vote there be 2 minutes of debate equally divided in the usual form and that it start with the vote after this one.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. McCAIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second.
The question is on agreeing to amendment No. 1126.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 45, nays 55, as follows:
[Rollcall Vote No. 214 Leg.]
YEAS--45
Akaka
Baucus
Bennet
Bingaman
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Johnson (SD)
Kerry
Kirk
Kohl
Lautenberg
Leahy
Lee
McCaskill
Menendez
Merkley
Mikulski
Moran
Murray
Nelson (FL)
Paul
Reid
Rockefeller
Sanders
Schumer
Shaheen
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Wyden
NAYS--55
Alexander
Ayotte
Barrasso
Begich
Blumenthal
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (WI)
Klobuchar
Kyl
Landrieu
Levin
Lieberman
Lugar
Manchin
McCain
McConnell
Murkowski
Nelson (NE)
Portman
Pryor
Reed
Risch
Roberts
Rubio
Sessions
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Whitehouse
Wicker
The amendment (No. 1126) was rejected.
Mr. LEVIN. Mr. President, I move to reconsider the vote.
Mr. MENENDEZ. I move to lay that motion on the table.
The motion to lay upon the table was agreed to.
AMENDMENT NO. 1456
The PRESIDING OFFICER (Mr. UDALL of Mexico). Under the previous order, there will be now be 2 minutes of debate equally divided prior to a vote on amendment No. 1456 offered by the Senator from California, Mrs. Feinstein.
The majority leader is recognized.
Mr. REID. I ask unanimous consent that all votes relating to the Defense authorization bill be 10 minutes in duration, including final passage.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Michigan.
Mr. LEVIN. Mr. President, a number of my colleagues have asked where we are. We are going to have probably three or four more rollcall votes, hopefully including final passage. There is also a package--and everyone should listen to this because at least 70 of us are affected. There is a package of about 70 amendments which have been cleared. However, as of the moment, there is an objection to that package being adopted.
When I say the package has been cleared, what I am saying is there has been no objection to the substance of any of those 70 amendments. If there was an objection to the substance, they would not be cleared. So there is no objection to the substance of those approximately 70 amendments, but you should be aware, because most of us have amendments in that cleared managers' package, that unless that objection is removed, we cannot get that package adopted tonight.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I wonder if I might be able to make a few comments.
This amendment is a compromise amendment. I think it is actually a very good amendment. I want to thank the chairman of the committee, the ranking member, and Senator Graham, who participated in a rather lengthy discussion, and this is the result.
The amendment--I will read it. It says:
Nothing in this section shall be construed to affect existing law or authority relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
There is a commitment from both the chairman and the ranking member and Senator Graham that they will defend this amendment in conference. So I hope everyone will vote for it because essentially it just supports present law, whether one supports the broad interpretation of present law, or one supports a more narrow interpretation of present law. There is no change in law.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Michigan.
Mr. LEVIN. Mr. President, I very much support this amendment, I am a cosponsor, and I hope we can all vote for it. This does what we said--those of us who wrote this bill--the bill does and does not do all along. It does not change current law. This amendment reinforces the point that this bill does not change current law relative to this section of this bill. The section of this bill does not change current law relative to the detention of people in the United States.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I will not repeat what the chairman said except that I would like to thank Senator Feinstein for her willingness to sit down and negotiate with us, and Senator Durbin, who has been a passionate advocate. I would also like to thank all of the people who came to the floor so often. I think the Senate is a better institution as a result of the debate, and I am sure the Senate and the American people are much better informed on this very important national security aspect of this bill.
I thank my colleagues. I urge an aye vote.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 99, nays 1, as follows:
[Rollcall Vote No. 215 Leg.]
YEAS--99
Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hatch
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kirk
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Paul
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden
NAYS--1
Kyl
The amendment (No. 1456) was agreed to.
The following excerpt of Sections 1031 and 1032 is from the Nov 15, 2011 version of S.1867 and may not include amendments adopted in the intervening days, but it allows readers to understand where Sen. Feinstein's compromise language (No. 1456) will be inserted into Section 1031 and No. 1126 would have been inserted.
To remind readers:
The Senator from California [Mrs. Feinstein] proposes an amendment numbered 1456.
Mrs. FEINSTEIN. I ask unanimous consent that the reading of the amendment be dispensed with.
There are others who wish to speak.
The amendment is as follows:
On p 360, between lines 21 and 22, insert the following:
(e) Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.
The Senator from California [Mrs. Feinstein] proposes en bloc amendments numbered 1125 and 1126.
The amendments are as follows:
(Purpose: To clarify the applicability of requirements for military custody with respect to detainees)
On page 361, line 9, insert ``abroad'' after ``is captured''.
3 Subtitle D—Detainee Matters
4 SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED
5 FORCES OF THE UNITED STATES TO DETAIN
6 COVERED PERSONS PURSUANT TO THE AU
7THORIZATION FOR USE OF MILITARY FORCE.
8 (a) IN GENERAL.—Congress affirms that the author
9ity of the President to use all necessary and appropriate
10 force pursuant to the Authorization for Use of Military
11 Force (Public Law 107–40) includes the authority for the
12 Armed Forces of the United States to detain covered per
13sons (as defined in subsection (b)) pending disposition
14 under the law of war.
15 (b) COVERED PERSONS.—A covered person under
16 this section is any person as follows:
17 (1) A person who planned, authorized, com
18mitted, or aided the terrorist attacks that occurred
19 on September 11, 2001, or harbored those respon
20sible for those attacks.
21 (2) A person who was a part of or substantially
22 supported al-Qaeda, the Taliban, or associated forces
23 that are engaged in hostilities against the United
24 States or its coalition partners, including any person
25 who has committed a belligerent act or has directly
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•S 1867 PCS
1 supported such hostilities in aid of such enemy
2 forces.
3 (c) DISPOSITION UNDER LAW OF WAR.—The dis4
position of a person under the law of war as described
5 in subsection (a) may include the following:
6 (1) Detention under the law of war without
7 trial until the end of the hostilities authorized by the
8 Authorization for Use of Military Force.
9 (2) Trial under chapter 47A of title 10, United
10 States Code (as amended by the Military Commis
11sions Act of 2009 (title XVIII of Public Law 111–
12 84)).
13 (3) Transfer for trial by an alternative court or
14 competent tribunal having lawful jurisdiction.
15 (4) Transfer to the custody or control of the
16 person’s country of origin, any other foreign coun
17try, or any other foreign entity.
18 (d) CONSTRUCTION.—Nothing in this section is in
19tended to limit or expand the authority of the President
20 or the scope of the Authorization for Use of Military
21 Force.
22 (e) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—
23 The Secretary of Defense shall regularly brief Congress
24 regarding the application of the authority described in this
25 section, including the organizations, entities, and individ-
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•S 1867 PCS
1 uals considered to be ‘‘covered persons’’ for purposes of
2 subsection (b)(2).
3 SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
4 (a) CUSTODY PENDING DISPOSITION UNDER LAW OF
5 WAR.—
6 (1) IN GENERAL.—Except as provided in para
7graph (4), the Armed Forces of the United States
8 shall hold a person described in paragraph (2) who
9 is captured in the course of hostilities authorized by
10 the Authorization for Use of Military Force (Public
11 Law 107–40) in military custody pending disposition
12 under the law of war.
13 (2) COVERED PERSONS.—The requirement in
14 paragraph (1) shall apply to any person whose de
15tention is authorized under section 1031 who is de
16 termined—
17 (A) to be a member of, or part of, al-
18 Qaeda or an associated force that acts in co
19ordination with or pursuant to the direction of
20 al-Qaeda; and
21 (B) to have participated in the course of
22 planning or carrying out an attack or attempted
23 attack against the United States or its coalition
24 partners.
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•S 1867 PCS
1 (3) DISPOSITION UNDER LAW OF WAR.—For
2 purposes of this subsection, the disposition of a per
3son under the law of war has the meaning given in
4 section 1031(c), except that no transfer otherwise
5 described in paragraph (4) of that section shall be
6 made unless consistent with the requirements of sec
7tion 1033.
8 (4) WAIVER FOR NATIONAL SECURITY.—The
9 Secretary of Defense may, in consultation with the
10 Secretary of State and the Director of National In
11telligence, waive the requirement of paragraph (1) if
12 the Secretary submits to Congress a certification in
13 writing that such a waiver is in the national security
14 interests of the United States.
15 (b) APPLICABILITY TO UNITED STATES CITIZENS
16 AND LAWFUL RESIDENT ALIENS.—
17 (1) UNITED STATES CITIZENS.—The require
18ment to detain a person in military custody under
19 this section does not extend to citizens of the United
20 States.
21 (2) LAWFUL RESIDENT ALIENS.—The require
22ment to detain a person in military custody under
23 this section does not extend to a lawful resident
24 alien of the United States on the basis of conduct
25 taking place within the United States, except to the
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•S 1867 PCS
1 extent permitted by the Constitution of the United
2 States.
3 (c) IMPLEMENTATION PROCEDURES.—
4 (1) IN GENERAL.—Not later than 60 days after
5 the date of the enactment of this Act, the President
6 shall issue, and submit to Congress, procedures for
7 implementing this section.
8 (2) ELEMENTS.—The procedures for imple
9menting this section shall include, but not be limited
10 to, procedures as follows:
11 (A) Procedures designating the persons au
12thorized to make determinations under sub
13section (a)(2) and the process by which such
14 determinations are to be made.
15 (B) Procedures providing that the require
16 ment for military custody under subsection
17 (a)(1) does not require the interruption of ongo
18ing surveillance or intelligence gathering with
19 regard to persons not already in the custody or
20 control of the United States.
21 (C) Procedures providing that a determina
22tion under subsection (a)(2) is not required to
23 be implemented until after the conclusion of an
24 interrogation session which is ongoing at the
25 time the determination is made and does not
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•S 1867 PCS
1 require the interruption of any such ongoing
2 session.
3 (D) Procedures providing that the require
4ment for military custody under subsection
5 (a)(1) does not apply when intelligence, law en
6forcement, or other government officials of the
7 United States are granted access to an indi
8vidual who remains in the custody of a third
9 country.
10 (E) Procedures providing that a certifi
11cation of national security interests under sub
12section (a)(4) may be granted for the purpose
13 of transferring a covered person from a third
14 country if such a transfer is in the interest of
15 the United States and could not otherwise be
16 accomplished.
17 (d) EFFECTIVE DATE.—This section shall take effect
18 on the date that is 60 days after the date of the enactment
19 of this Act, and shall apply with respect to persons de
20scribed in subsection (a)(2) who are taken into the custody
21 or brought under the control of the United States on or
22 after that effective date.
For reference this is the text of the Udall Amendment:
http://thomas.loc.gov/...
Mr. UDALL of Colorado. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To revise the provisions relating to detainee matters)
Strike subtitle D of title X and insert the following:
Subtitle D--Detainee Matters
SEC. 1031. REVIEW OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General.--Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:
(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).
(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.
(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.
(b) Covered Persons.--A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:
(1) The Authorization for Use of Military Force (Public Law 107-40).
(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).
(3) Any other statutory or constitutional authority for use of military force.
(c) Congressional Action.--Each of the appropriate committees of Congress may, not later than 45 days after receipt of the report required by subsection (a), hold a hearing on the report, and shall, within 45 days of such hearings, report to Congress legislation, if such committee determines legislation is appropriate and advisable, modifying or expanding the authority of the Executive Branch to carry out detention and prosecution of covered persons.
(d) Appropriate Committees of Congress Defined.--In this section, the term ``appropriate committees of Congress'' means--
(1) the Committee on Armed Services, the Committee on the Judiciary, and the Select Committee on Intelligence of the Senate; and
(2) the Committee on Armed Services, the Committee on the Judiciary, and the Permanent Select Committee on Intelligence of the House of Representatives.
It all bears keeping a close eye as the Conference Committee deliberations unfold.
UPDATE 12.13.11
Conference Committee Report
The following is excerpted from the
CONFERENCE REPORT ON H.R. 1540,
NATIONAL DEFENSE AUTHORIZATION
ACT FOR FISCAL YEAR 2012
Also available at the House Committee on Rules webpage are the Joint Statement of Managersand The Conference Report Highlights.
From the Conference Report Highlights:
DETAINEES—The FY12 NDAA includes critical provisions to clarify and reaffirm the military’s responsibility and authority to detain al Qaeda terrorists. Ten years after September 11, 2001, the extremist and terrorist threat against the United States and our allies continues to evolve. As we begin drawing down forces in Afghanistan, and conscious of the rise of rise of al Qaeda affiliates in places like Yemen, the FY12 NDAA recognizes that the war against terrorism and violent extremism is broader than operations in any one country. The bill strengthens policies and procedures used to detain, interrogate, and prosecute al Qaeda, the Taliban, affiliated groups, and those who substantially support them.
The Conferees balance this approach with the conviction that the erosion of citizens’ civil liberties in the pursuit of security constitutes a victory by the enemy. To that end, these provisions do not extend any new authorities to detain U.S. citizens and explicitly exempt U.S. citizens from provisions related to military custody of terrorists. The FY 12 NDAA:
Prohibits the transfer or release of Guantanamo detainees to or within the United States.
Prohibits the use of funds to house Guantanamo detainees in the United States.
Reaffirms the lawful detention of individuals from al Qaeda, the Taliban, and associated forces engaged in armed conflict with the United States, without extending new authority to detain U.S. citizens.
Requires military custody for al Qaeda and associated terrorists who are captured plotting an attack on the United States, except where the Secretary of Defense waives this requirement as not being in the national security interest of the United States. This provision explicitly exempts U.S. citizens. ...
(Emphasis added.)
The Conference Report continues to play the same word games played in the Senate by the defenders of detention of US Citizens without trial.
The final bill expempts US citizens only from the portions mandating military custody (Section 1022), but does not exempt US Citizens from the provisions under which the military would be given authority to detain US Citizens pursuant to Presidential request (Section 1021).
Proponents of the final language believe (and stated so on the record) that such authority already exists under current law. That's why they say it won't 'extend' and 'new' authorities to 'detain US Citizens'.
Cute.
Frankly, it's not so complicated that they would make that mis-statement through misunderstanding. They are trying to hide what they are doing.
It is not about not trusting the current President, it is that we cannot trust ANY one man or woman with such power. (Imagine Newt, or Santorum, or Bachmann having such powers. Imagine Cheney having such powers.)
The report language (proposed final legislative text) follows first, and is then followed by the comparison of the House and Senate positions, actions taken and any explanatory comments.
(Note on change of section numbers from Senate Bill, in the bill considered by the Senate, the sections we are highlighting were numbered as Sections 1031 and 1032 as detailed in my resource diary for that final consideration: http://www.dailykos.com/...) (Where you can also compare the Senate language and amendments - both proposed and adopted.)
The following is excerpted from the
CONFERENCE REPORT ON H.R. 1540,
NATIONAL DEFENSE AUTHORIZATION
ACT FOR FISCAL YEAR 2012
Pg 81 of 371 pdf
Subtitle D—Counterterrorism
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII ofPublic Law 111–84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
(f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—
The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).
SEC. 1022. MILITARY CUSTODY FOR FOREIGN ALQAEDA TERRORISTS.
(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR.—
(1) IN GENERAL.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined—
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al- Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
(3) DISPOSITION UNDER LAW OF WAR.—For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028.
(4) WAIVER FOR NATIONAL SECURITY.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—
(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) LAWFUL RESIDENT ALIENS.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.
(c) IMPLEMENTATION PROCEDURES.—
(1) IN GENERAL.—Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.
(2) ELEMENTS.—The procedures for implementing this section shall include, but not be limited to, procedures as follows:
(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation.
(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country.
(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
(d) AUTHORITIES.—Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.
(e) EFFECTIVE DATE.—This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.
The comparison analysis of the two versions of the bill begins in the Congressional Record at page 215, but the excerpted portions are found starting on page 247.
...Subtitle D—Counterterrorism
Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force (sec. 1021)
The House bill contained a provision (sec. 1034) that would affirm that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces.
The Senate amendment contained a provision (sec. 1031) that would affirm the authority of the Armed Forces of the United States to detain certain covered persons pursuant to the Authorization for Use of Military Force (Public Law 107–40). The provision would not affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
The House recedes.
Military custody for foreign al-Qaeda terrorists (sec. 1022)
The Senate amendment contained a provision (sec. 1032) that would require military custody for foreign al-Qaeda terrorists who are captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40), subject to a national security waiver. Under the provision, the President would have broad authority to issue implementation procedures, including but not limited to deciding who makes a determination of coverage, how the determination is made, and when it is made.
The House bill contained no similar provision.
The House recedes with an amendment providing that nothing in this provision shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody. The law enforcement and national security tools that would not be affected in any way by this provision include, but would not be limited to, Grand Jury subpoenas, national security letters, and actions pursuant to the Foreign Intelligence Surveillance Act (Public Law 95–511). The amendment would also authorize the President, rather than the Secretary of Defense, to waive the requirements of the provision.
The conferees note that while section 1021 of this bill would apply to ‘‘al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners,’’ this section would apply to ‘‘al Qaeda or an associated force that acts in coordination with or pursuant to the direction of al Qaeda.’’ The conferees agree that while the Taliban is covered by section 1021, it is not covered by this section.
Procedures for periodic detention review of individuals detained at United States Naval Station, Guantanamo Bay, Cuba (sec. 1023)
The House bill contained a provision (sec. 1036) that would require the Secretary of Defense to establish a process to review the detention of each individual detained at Guantanamo.
The Senate amendment contained a provision (sec. 1035) that would require the Secretary to submit to Congress a report on procedures for implementing the periodic review process required by Executive Order No. 13567 for such detainees.
The House recedes with an amendment that would clarify that the periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at Guantanamo at any time on or after the date of enactment of this Act.
The conferees understand that the review process established by the Executive Order is not a legal proceeding and does not create any discovery rights in the detainee, his personal representative, or private counsel. For this reason, the conferees expect the procedures established under this section to provide that: (1) the compilation of information for the review process should be conducted in good faith, but does not create any rights on behalf of the detainee; (2) the mitigating information to be provided to the detainee is information compiled in the course of this good faith compilation effort; (3) the decision whether to permit the calling of witnesses and the presentation of statements by persons other than the detainee is discretionary, and not a matter of right; and (4) access to classified information on the part of private counsel is subject to national security constraints, clearance requirements, and the availability of resources to review and clear relevant information.
Procedures for status determinations (sec. 1024)
The Senate amendment contained a provision (sec. 1036) that would require the Secretary of Defense to establish procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40), including access to a military judge and a military lawyer for an enemy belligerent who will be held in longterm detention.
The House bill contained no similar provision.
The House recedes with an amendment clarifying that the Secretary of Defense is not required to apply the procedures for long-term detention in the case of a person for whom habeas corpus review is available in federal court.
Because this provision is prospective, the Secretary of Defense is authorized to determine the extent, if any, to which such procedures will be applied to detainees for whom status determinations have already been made prior to the date of the enactment of this Act.
The conferees expect that the procedures issued by the Secretary of Defense will define what constitutes ‘‘long-term’’ detention for the purposes of subsection (b). The conferees understand that under current Department of Defense practice in Afghanistan, a detainee goes before a Detention Review Board for a status determination 60 days after capture, and again 6 months after that. The Department of Defense has considered extending the period of time before a second review is required. The conferees expect that the procedures required by subsection (b) would not be triggered by the first review, but could be triggered by the second review, in the discretion of the Secretary. ...