[Congressional Record Volume 158, Number 152 (Friday, November 30, 2012)]
[Senate]
[Pages S7293-S7300]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013--Continued
[...]
Amendment No. 3018
Mr. LEAHY. Mr. President, the National Defense Authorization Act,
NDAA, that was enacted into law last December contained several deeply
troubling provisions related to the indefinite detention of individuals
without charge or trial. These provisions undermine our Nation's
fundamental principles of due process and civil liberties. I strongly
opposed these provisions during last year's debate, and believe that we
must eliminate and fix those flawed provisions. Toward that end, I
voted last night in favor of the amendment offered by Senator
Feinstein, which clarified that our Government cannot detain
indefinitely any citizen or legal permanent resident apprehended in the
United States. It is my hope that this is a positive step forward in
our efforts to undo some of the damage from last year's NDAA.
But our work is not done. As I have stated before, I believe that the
vital protections of our Constitution extend to all persons here in the
United States, regardless of citizenship or immigration status. That is
why I cosponsored an amendment filed by Senator Mark Udall that would
go beyond the scope of the Feinstein amendment to extend the protection
against indefinite detention to any person within the United States. I
look forward to working with Senator Udall and others in our continuing
efforts to improve the law in this area.
I am fundamentally opposed to indefinite detention without charge or
trial. I fought against the Bush administration policies that led to
the current situation, with indefinite detention as the de facto
policy. I opposed President Obama's executive order in March 2011 that
contemplated indefinite detention, and I helped lead the efforts
against the detention-related provisions in last year's NDAA. Simply
put, a policy of indefinite detention has no place in the justice
system of any democracy let alone the greatest democracy in the world.
The American justice system is the envy of the world, and a regime of
indefinite detention diminishes the credibility of this great Nation
around the globe, particularly when we criticize other governments for
engaging in such conduct, and as new governments in the midst of
establishing legal systems look to us as a model of justice. 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. That is why I have opposed and will
continue to oppose indefinite detention.
Last December, Senator Feinstein introduced the Due Process Guarantee
Act, which was at the core of her amendment to this year's NDAA. Both
the Due Process Guarantee Act and Senator Feinstein's amendment make
clear that neither an authorization to use military force nor a
declaration of war confer unfettered authority to the executive branch
to hold Americans in indefinite detention. In February, I chaired a
hearing to examine the Due Process Guarantee Act, and the Judiciary
Committee heard testimony from witnesses who asserted that no
individual arrested within the United States should be detained
indefinitely regardless of citizenship or immigration status. I
wholeheartedly agree, and I believe that the Constitution requires no
less.
The notion of indefinitely imprisoning American citizens is the most
striking, but to me the Constitution creates a framework that imposes
important legal limits on the Government and provides that all people
in the U.S. have fundamental liberty protections. That is why I have
cosponsored Senator Udall's amendment, which provides expansive
protections against indefinite detention and fixes this unwise policy
for all people. As I said before, though, I view the adoption of
Senator Feinstein's amendment as a positive first step towards this
goal.
During last night's Senate floor debate on Senator Feinstein's
amendment, however, some made fundamentally flawed legal arguments and
interpretations. As chairman of the Senate Judiciary Committee, I feel
it is important to set the record straight.
According to those who had opposed our efforts and support indefinite
detention, Senator Feinstein's amendment should somehow be read as
authorizing the indefinite detention of United States citizens captured
on U.S. soil. They contended that the Supreme Court in Hamdi v.
Rumsfeld held that the Authorization for the Use of Military Force
(AUMF) expressly authorized the indefinite detention of citizens,
regardless of where they were apprehended. This assertion is flatly
wrong, entirely unsupported by the actual text of the opinion and, I
believe, contrary to the Constitution.
Much of last night's debate centered on the language in Senator
Feinstein's amendment that prohibited the ``detention without charge or
trial of a citizen or lawful permanent resident of the United States
apprehended in the United States, unless an act of Congress expressly
authorizes such detention.'' Senators who had opposed our remedial
efforts and support indefinite detention asserted that the Supreme
Court in Hamdi concluded that the AUMF was an ``explicit
authorization'' of such detention even for citizens captured in the
U.S. and that the AUMF was an act of Congress that fulfills the
exception in the Feinstein amendment. The Senators ignore the fact that
the text of the AUMF contains no reference whatsoever to the detention
of individuals without charge or trial, and certainly no express
reference to or authority for the detention of citizens in such a
manner. Moreover, nowhere in the plurality or dissenting opinions in
Hamdi do any of the Justices state that the AUMF expressly authorizes
the detention of citizens without charge or trial.
The preexistence of the AUMF does not fulfill the requirement that
the amendment seeks to create and that requires express congressional
authorization of exceptional authority after the adoption of the
Feinstein amendment. Senator Feinstein did not intend to write and the
Senate did not intend to pass a nullity. If this opposition argument
were right, the amendment changed nothing.
Senator Levin acknowledged in his remarks last night that the
``Supreme Court in Hamdi held that the existing authorization for use
of military force does address this issue and does explicitly, in their
words, authorize detention of United States citizens in that situation
which was on the battlefield in Afghanistan.'' (emphasis added) The
Hamdi case did not address and did not expressly authorize the
indefinite detention of U.S. citizens apprehended in the U.S. As
Senator Feinstein and Senator Durbin have pointed out, the Hamdi ruling
was limited to ``individuals who fought against the United States in
Afghanistan as part of the Taliban.''
The substance of the Supreme Court's legal analysis is important
here, and the attempts to gloss over the actual text of the Hamdi
opinion cannot go unchecked. The starting point of the Court's analysis
in this regard was the text of the Non-Detention Act, codified at 18
U.S.C. Section 4001(a), which states that ``no citizen shall be
imprisoned or otherwise detained by the United States except pursuant
to an Act of Congress.'' The Hamdi court then turned to whether the
AUMF constituted an act of Congress within the scope of this exception,
such that Hamdi's detention would be authorized. In her plurality
opinion, Justice O'Connor concluded that the answer was yes, but she
made certain to circumscribe carefully the scope of that ruling by
saying ``we conclude that the AUMF is explicit congressional
authorization for the detention of individuals in the narrow category
we describe,'' i.e. ``individuals who fought against the United States
in Afghanistan as part of the Taliban.'' Stated simply, the Hamdi
decision does not stand for the proposition that the AUMF expressly
authorizes the indefinite detention of U.S. citizens captured on U.S.
soil.
Although last night's debate on the Hamdi decision focused largely on
the
[[Page S7299]]
statutory authority to detain individuals, we must also not lose sight
of other aspects of that opinion regarding the nature and duration of
law of war detention, and how changing circumstances might warrant re-
examination of the authority for such detention. Last night, Senator
Graham stated that Hamdi's imprisonment ``could last for the rest of
his life because the law of war detention can last for the duration of
the relevant conflict.'' Although I do not necessarily disagree that
law of war detention has historically been viewed as appropriate for
the duration of the relevant conflict, this statement begs the question
of when and how the duration of the relevant conflict is determined.
In her opinion in Hamdi, Justice O'Connor stated that the AUMF
justified detention as part of the exercise of necessary and
appropriate force ``if the record establishes that United States troops
are still involved in active combat in Afghanistan'' against Taliban
combatants. Significantly, Justice O'Connor wrote that ``if the
practical circumstances of a given conflict are entirely unlike those
of the conflicts that informed the development of the law of war, that
understanding may unravel.'' Accordingly, as we wind down our combat
operations in Afghanistan, Congress and the courts should consider
carefully how those changing circumstances might affect the legitimacy
of so-called law of war detention authority under the AUMF.
I also continue to be deeply disturbed by the mandatory military
detention provisions that were included in last year's NDAA through
Section 1022. In the fight against al Qaeda and other terrorist
threats, we should give our intelligence, military, and law enforcement
professionals all the tools they need not limit those tools, as was
required by this law. That is why the Secretary of Defense, Attorney
General, Director of the FBI, and Director of National Intelligence all
objected to this section and it was modified to require the President
to produce procedures to determine who meets the definition of a person
subject to mandatory military detention. I appreciate that the
President took an aggressive approach in these procedures to preserve
the flexibility of law enforcement, as well as military and
intelligence professionals, to investigate and prosecute alleged
terrorists.
However, these procedures do not mitigate my concerns that the
mandatory military detention requirements are overly broad and threaten
core constitutional principles. Once sacrificed, our treasured
constitutional protections are not easily restored. After all, the
policy directive of this President can be undone by a future
administration. That is why I have cosponsored Senator Udall's
amendment to this year's NDAA that would repeal this ill-advised
authority.
In Hamdi, Justice O'Connor stated unequivocally that ``[w]e have long
since made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation's citizens.'' We
can never forget that the power of our Federal Government is bound by
the Constitution. The detention provisions enacted through last year's
NDAA are deeply troublesome. They do not represent Vermont values, they
do not represent American values, and they have no place in this world.
Moving forward, I urge all Senators to join in support of upholding the
principles of our Constitution, protecting American values, and
championing the rule of law. We need a bipartisan effort to guarantee
that the United States remains the model for the rule of law to the
world.
