[Congressional Record Volume 158, Number 152 (Friday, November 30, 2012)]
[Pages S7293-S7300]


                           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 
  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 
  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. 
  Although last night's debate on the Hamdi decision focused largely on 

[[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 
  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 
  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