[Congressional Record Volume 158, Number 150 (Wednesday, November 28, 2012)]
[Senate]
[Pages S6995-S7031]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013
The ACTING PRESIDENT pro tempore. The clerk will report the bill by
title.
The assistant legislative clerk read as follows:
A bill (S. 3254) to authorize appropriations for fiscal
year 2013 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.
[...]
Mrs. FEINSTEIN. Madam President, I thank the distinguished chairman.
I am going to offer an amendment--a version of it was introduced as a
separate bill last year as S. 2003. The cosponsors of the amendment are
Senators Paul, Lee, Coons, Collins, Lautenberg, Gillibrand, and Kirk. I
ask unanimous consent to add Senators Tester, Johnson of South Dakota,
Sanders, Whitehouse, and Heller as cosponsors to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. This amendment is almost identical to the bill I
introduced a year ago. That bill has a bipartisan group of 30
cosponsors. It is called the Due Process Guarantee Act, and the co-
sponsors include five Republicans: Senators Lee, Paul, Collins, Kirk,
and Moran. Thanks to Chairman Leahy, the bill had a hearing earlier
this year in the Judiciary Committee, as the Presiding Officer will so
note, on February 29, 2012.
The amendment I will offer clarifies questions that arose during last
year's defense authorization bill about the U.S. Government's power to
detain its citizens indefinitely. Last year's bill had detention
provisions in it that never had a hearing in the Judiciary Committee,
the Intelligence Committee, or the Armed Services Committee.
Let me just take a minute to describe why this is such an important
issue for me.
When I was a very young girl--I remember it was a Sunday because my
father worked every other day of the week--my father took me down to a
racetrack just south of San Francisco
[[Page S7019]]
called Tanforan. It was the beginning of World War II. The racetrack
was then a staging point for Japanese Americans en route to more
permanent detention centers.
Here is the edict that was put out:
Western Defense Command and Fourth Army Wartime Civil
Control Administration, Presidio of San Francisco,
California, April 1, 1942, Instructions to All Persons of
Japanese Ancestry, Living in the Following Area:
Then it describes the area. It says:
All Japanese persons, both alien and non-alien, will be
evacuated from the above designated area by 12:00 o'clock
noon Tuesday, April 7, 1942.
No Japanese person will be permitted to enter or leave the
above described area after 8:00 a.m., Thursday, April 2, 1942, without
obtaining special permission from the Provost Marshal of the Civil
Control Station.
This was an order which remanded all persons of Japanese ancestry
into custody for the duration of World War II.
Let me show you a little of what these facilities looked like. Shown
in this picture I have in the Chamber is Tanforan Racetrack, and these
are the barracks that were put up to house Japanese-American citizens
and non-citizens--only because they were of Japanese ancestry.
In this next picture, this is what it looked like close up. This is a
young person walking out of this small cell in that barrack.
In this next picture, these are Japanese Americans standing in line--
and here is the racetrack--either to get food or for some other reason.
This stuck in my memory, and I believe it was a stain on the
greatness of this country. As I saw the barbed wire, these men, women,
and children housed in horse stables, in small buildings, as you can
see, it was an experience I will never forget.
To ensure that this shameful experience was never repeated, almost 30
years after the 1942 evacuation order was issued, Congress passed and
President Nixon signed into law the Non-Detention Act of 1971, which
repealed a 1950 statute that explicitly allowed detention of U.S.
citizens without charge or trial.
The Non-Detention Act of 1971 clearly states:
No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.
Despite this history, during last year's debate on the Defense
authorization bill some in this body advocated for the indefinite
detention of American citizens. This is an issue that has been the
subject of much legal controversy since 9/11.
Proponents of indefinitely detaining citizens apprehended in the U.S.
argue that the Authorization for Use of Military Force--what we call
the AUMF--that was enacted in the wake of 9/11 is ``an act of
Congress,'' in the language of the Non-Detention Act, that authorizes
the indefinite detention of American citizens regardless of where they
are captured.
They further assert that their position is justified by the U.S.
Supreme Court's plurality decision in the 2004 case of Hamdi v.
Rumsfeld. However, that position is undercut by the 2003 case of
Padilla v. Rumsfeld in the Second Circuit Court of Appeals. So we have
a kind of muddle.
But let me discuss the facts of the Hamdi case because it is
important to note that Yaser Esam Hamdi was a U.S. citizen who took up
arms on behalf of the Taliban and was captured on the battlefield in
Afghanistan. The Supreme Court effectively did uphold his military
detention, so some of my colleagues seize upon this to say that the
military can today indefinitely detain even U.S. citizens who are
arrested domestically.
However, the Supreme Court's opinion in that case was a decision by a
4-to-4 plurality that recognized the power of the government to detain
U.S. citizens captured abroad as ``enemy combatants'' for some period,
but otherwise repudiated the government's broad assertions of executive
authority to detain citizens without charge or trial.
To the extent the Hamdi case permits the government to detain a U.S.
citizen ``until the end of hostilities,'' it does so only under a very
limited set of circumstances; namely, citizens taking an active part in
hostilities who are captured in Afghanistan and who are afforded
certain due process protections, at a minimum.
Additionally, decisions by the lower courts have contributed to the
current state of ambiguity. For example, consider those decisions
involving Jose Padilla, a U.S. citizen who was arrested in Chicago. He
was initially detained pursuant to a material witness warrant based on
the 9/11 terrorist acts.
In Padilla, the Second Circuit held that AUMF did not authorize his
detention, saying:
We conclude that clear congressional authorization is
required for detentions of American citizens on American soil
because . . . the Non-Detention Act . . . prohibits such
detentions absent specific congressional authorization.
The Second Circuit went on to say that the 2001 Authorization for Use
of Military Force--and I quote--``is not such an authorization, and no
exception to [the Non-Detention Act] otherwise exists.''
So here is the problem. We have the Supreme Court that says one thing
in a limited way and a federal appeals court that says another thing on
an issue not directly addressed by the Supreme Court. When we debated
this issue on the Senate floor last year, the Senate ultimately agreed
to a compromise amendment which passed by an overwhelming 99-to-1 vote.
I worked on that with Senators Lee, Paul, Levin, McCain, Durbin, Leahy,
and the amendment provided 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.
Now, that was adopted to say, leave things as they are right now. It
preserved the current state of the law, continuing to leave it to the
courts to resolve who is right about whether the AUMF authorizes the
military detention of anyone apprehended domestically.
I believe strongly the time has come now to end this legal ambiguity
and to state clearly once and for all that the AUMF or other
authorities do not authorize such indefinite detention of Americans
apprehended in the United States.
To accomplish this, we are offering an amendment which affirms the
continuing application of the principles behind the Non-Detention Act
of 1971. It amends that act to provide clearly that no military
authorization allows indefinite detention of U.S. citizens or green
card holders who are apprehended inside the United States.
The amendment states, ``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
resident of the United States apprehended in the United States unless
an Act of Congress expressly authorizes such detention.''
That affirms the Second Circuit's clear statement rule from the
Padilla case. Some may ask why this amendment protects green card
holders as well as citizens. Others may ask why the amendment does not
protect all persons apprehended in the United States from indefinite
detention? Let me be clear. I would support providing the protections
in this amendment to all persons in the United States whether lawfully
or unlawfully present.
But the question is, Is there enough support in this body to expand
this amendment to cover others besides U.S. citizens and green card
holders? I do not believe there is. We got 45 votes last year on a
similar amendment protecting U.S. citizens. We have re-worked the
amendment and gained more support this year, as reflected in the co-
sponsors we have today. So my hope is that at least we can clear up the
law with strong protections for citizens and legal permanent residents.
Wherever we draw the line on who should be covered by this
legislation, I believe it violates fundamental American rights to allow
anyone apprehended in the United States to be detained without charge
or trial. The FBI and other law enforcement agencies have proven time
and time again they are up to the challenge of detecting, stopping,
arresting, and convicting terrorists found on U.S. soil, having
successfully arrested, detained, and convicted hundreds of these
heinous people, both before and after 9/11.
For example, since January 2009, 98 individuals have been
successfully arrested inside the United States by the
[[Page S7020]]
FBI and other Federal or local law enforcement officers on terrorism-
related charges. Last month, the staff of the Senate Intelligence
Committee compiled a list of the individuals arrested in the past 4
years as part of more than 50 different terrorism investigations. The
list was based on publicly available information from the FBI, the
Congressional Research Service, and media reports. I have it here and I
ask unanimous consent to have the list printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Terrorist Arrests and Plots Stopped in the United States 2009-2012
(Compiled by Senate Intelligence Committee staff based on publicly
available information from the FBI, the Congressional Research Service,
and media reports)
(1) Ralph Deleon, (2) Miguel Alejandro Santana Vidriales
(Santana), (3) Arifeen David Gojali--Conspiracy to Provide
Material Support to Terrorism--November 2012.
On Friday, November 16, 2012, the FBI arrested Deleon,
Santana, and Gojali who were planning to travel to
Afghanistan to attend terrorist training and commit violent
jihad. Deleon, of Ontario, California, is a lawful permanent
resident alien, born in the Philippines. Santana, of Upland,
California, is a lawful permanent resident, born in Mexico,
and whose application for citizenship is pending in the U.S.
Gojali, of Riverside, California, is a United States citizen.
According to a criminal complaint filed in U.S. District
Court in the Central District of California, the defendants
conspired to provide material support to terrorists knowing
or intending that such support was to be used in preparation
for or in carrying out: conspiracy to kill, kidnap, maim, or
injure persons and damage property in a foreign country;
killing and attempting to kill officers and employees of the
United States; killing nationals of the United States;
conspiracy to use a weapon of mass destruction outside the
United States; and bombing places of public use and
government facilities. The complaint further alleges that
Santana, Deleon, and Gojali conducted preliminary training in
southern California at firearms and paintball facilities to
prepare for terrorist training overseas.
(4) Quazi Mohammad Rezwanul Ahsan Nafis--Plot to Bomb New
York Federal Reserve Bank--October 2012.
On October 17, 2012, the FBI arrested Ahsan Nafis, a
Bangladeshi national, as he attempted to detonate what he
believed to be a 1,000-pound bomb at the New York Federal
Reserve Bank in lower Manhattan's financial district. The
defendant faces charges of attempting to use a weapon of mass
destruction and attempting to provide material support to Al
Qaeda. According to an FBI press release, the accused,
``traveled to the United States in January 2012 for the
purpose of conducting a terrorist attack on U.S. soil. Nafis,
who reported having overseas connections to Al Qaeda,
attempted to recruit individuals to form a terrorist cell
inside the United States. Nafis also actively sought out Al
Qaeda contacts within the United States to assist him in
carrying out an attack.''
(5) Adel Daoud--Plot to Bomb Downtown Chicago Bar--
September 2012.
On Friday September 14, 2012, Adel Daoud attempted to
detonate what he believed to be a car bomb outside a bar in
downtown Chicago. Daoud, a U.S. citizen, was arrested as part
of an ongoing FBI counterterrorism operation after he was
discovered on the Internet seeking information on how to
conduct terrorist attacks. According to an FBI press release,
``In about May 2012, two FBI online undercover employees
contacted Daoud in response to material Daoud posted online
and thereafter exchanged several electronic communications
with Daoud. According to the affidavit, during these
communications Daoud expressed an interest in engaging in
violent jihad, either in the United States or overseas.''
(6) Douglas L. Wright, (7) Brandon L. Baxter, (8) Anthony
Hayne, (9) Connor C. Stevens, and (10) Joshua S. Stafford--
Plot to Bomb Brecksville-Northfield High Level Bridge in
Ohio--May 2012.
These five men were arrested on May 1, 2012 after they
attempted to detonate an explosive device set on the
Brecksville-Northfield High Level Bridge in Ohio that was
given to them by an undercover FBI agent. The accused men are
self-proclaimed anarchists who considered carrying out a
series of attacks, but ultimately decided to target the
bridge in Ohio after an initial plot to use smoke grenades to
distract law enforcement in order for co-conspirators to
topple financial institution signs atop high rise buildings
in downtown Cleveland failed to materialize. ``The defendants
conspired to obtain C-4 explosives contained in two
improvised explosive devices to be placed and remotely
detonated,'' according to the complaint.
(11) Bakhtiyor Jumaev and (12) Jamshid Muhtorov--Conspiracy
to Provide Material Support to the Islamic Jihad Union
(IJU)--March 2012.
On March 15, 2012, the FBI arrested Bakhtiyor Jumaev who
was charged with one count of conspiracy to provide material
support to the Islamic Jihad Union (IJU). The FBI had been
conducting an investigation into the activities of Jumaev and
his associate, Jamshid Muhtorov, who was arrested in January
2012 on similar charges. Jumaev and Muhtorov had pledged
support for the IJU and Jumaev sent funds to Muhtorov,
specifically intended for the IJU. The U.S. Government has
designated the IJU as a Foreign Terrorist Organization.
(13) Amine El Khalifi--Plot to carry out a Suicide Bomb
Attack against the U.S. Capitol--February 2012.
Amine El Khalifi, an illegal immigrant from Morocco, was
arrested on February 17, 2012 for attempting to detonate a
bomb in what was envisioned to be a suicide attack against
the U.S. Capitol Building. According to an FBI press release,
``El Khalifi allegedly traveled to a parking garage near the
U.S. Capitol building. El Khalifi took possession of a MAC-10
automatic weapon and put on a vest containing what he
believed to be a functioning bomb. Unbeknownst to El Khalifi,
both the weapon and the bomb had been rendered inoperable by
law enforcement. El Khalifi walked alone from the vehicle
toward the United States Capitol, where he intended to shoot
people and detonate the bomb. El Khalifi was arrested and
taken into custody before exiting the parking garage.'' The
FBI made initial contact with Khalifi in January 2011. Over
the course of the year he cited his anger over the ``war on
terrorism'' and the ``war on Muslims'' as his rationale
behind planned attacks against a military installation and a
restaurant in Washington D.C. After acquiring and testing
dummy explosives given to him by FBI affiliates, Khalifi
modified his plans to conduct a suicide attack against the
U.S. Capitol.
(14) Sami Osmakac--Plot to Bomb Locations in Tampa,
Florida--January 2012.
On January 7, 2012, the FBI arrested Sami Osmakac, a
naturalized U.S. citizen born in the former Yugoslavia
(Kosovo) on one count of attempted use of a weapon of mass
destruction. The FBI used a sting operation to apprehend
Osmakac who was 25 years old at the time of his arrest.
According to FBI investigators, in September 2011, an FBI
source reported that Osmakac and another person had asked for
Al Qaeda flags at the source's business. The source continued
to interact with Osmakac and report to the FBI about his
activities. Osmakac allegedly expressed interest in
obtaining firearms and explosives for attacks he was
planning in the Tampa area, and the source introduced him
to an FBI undercover employee reputed to have access to
such materials. The undercover employee supplied Osmakac
with hand grenades, an assault rifle, a pistol, a car
bomb, and an explosive belt. Osmakac was unaware that the
items actually did not work. In the course of his plotting
Osmakac purportedly discussed targets such as ``night
clubs in the Ybor City area of Tampa, the Operations
Center of the Hillsborough County Sheriff's Office in Ybor
City, and a business in the South Tampa,'' according to a
DOJ press release. Muslims in Tampa reportedly aided the
FBI in its investigation. Osmakac purportedly exhibited
extremist views prompting at least one local Muslim to
tell authorities about him.
(15) Jose Pimentel--Plot to Bomb New York City Targets and
Troops Returning from Combat Overseas--November 2011.
On November 19, 2011, New York City police arrested a
convert to Islam named Jose Pimentel on terrorism charges.
According to New York City Police Commissioner Raymond W.
Kelly, Pimentel purportedly discussed killing U.S. military
personnel returning home from Iraq and Afghanistan, in
conjunction with bombing post offices in and around
Washington Heights and police cars in New York City, as well
as a police station in Bayonne, N.J. The alleged would-be
bomber was building explosive devices when he was arrested
after two years of surveillance by the New York City Police
Department (NYPD). Pimentel reportedly discussed his plans
with an individual he did not know was an NYPD criminal
informant. Pimentel sympathized with Al Qaeda and drew
inspiration from now-deceased radical cleric Anwar al-Awlaki.
The alleged would-be bomber purportedly tried but failed to
correspond with Awlaki via e-mail, and the cleric's death may
have sped up Pimentel's plotting. According to the criminal
complaint filed in the case, the NYPD tracked Pimentel's
internet activity, finding that Pimentel had posted online
pro-Al Qaeda material as well as an article detailing how to
make a bomb from Inspire Magazine. Working in the apartment
of an NYPD criminal informant, Pimentel supposedly followed
Inspire's bomb making instructions, scraping match heads,
collecting the incendiary material, as well as drilling holes
in three pipes, among other steps.
(16) Mansour Arbabsiar--Plot to Assassinate the Saudi
Ambassador to the United States--October 2011.
Mansour Arbabsiar was arrested after he approached a DEA
informant, who he believed was a member of Los Zetas, to hire
the cartel to carry out a terrorist attack against the Saudi
ambassador at a restaurant in Washington. Mr. Arbabsiar had
many connections to Iran's military and the Qods Force.
(17) Rezwan Ferdaus--Plot to Attack U.S. Capitol and
Pentagon--September 2011.
On September 28, Rezwan Ferdaus, a U.S. citizen from
Ashland, MA, was arrested on terrorism charges. He allegedly
plotted to attack the Pentagon and the U.S. Capitol with
explosives-laden remote-controlled airplanes. According to
DOJ, he also planned a ground assault in conjunction with his
aerial
[[Page S7021]]
attack, intending to use firearms and to involve six
conspirators in this phase of his plot. Ferdaus also
purportedly attempted to provide Al Qaeda with modified cell
phones he believed would be used as detonators for improvised
explosive devices intended to harm U.S. soldiers abroad. As
described by DOJ, FBI undercover employees acting as members
of Al Qaeda supplied Ferdaus with money, fake explosives for
the airplanes, firearms, and hand grenades. In turn, (among
other things) Ferdaus provided the cell phone detonators to
these phony Al Qaeda recruiters as well as a training video
on how to construct them. Ferdaus supposedly began plotting
in 2010. In January 2011, he discussed his plans with an FBI
informant. In May 2011, he visited the Washington, DC, area
to conduct surveillance of his targets and view the site from
which he intended to launch his remote-controlled airplanes.
According to the FBI, Ferdaus believed that one of his
airplanes could collapse the Capitol dome.
(18) Agron Hasbajrami--Plot to Fight in Pakistan--September
2011.
On September 6, 2011, Agron Hasbajrami was arrested at John
F. Kennedy International Airport in New York City as he tried
to board a flight to Turkey. Hasbajrami allegedly planned to
join a jihadist fighting group in the Federally Administered
Tribal Areas of Pakistan. He also purportedly sent more than
$1,000 to Pakistan to support the efforts of a militant with
whom he communicated.
(19) Naser Abdo--Plot to Attack Targets Near Fort Hood--
July 2011.
On July 27, 2011, U.S. Army Private Naser Abdo was arrested
near Fort Hood in Texas for allegedly plotting a shooting
spree and bombing in the area--near the same place where Army
Major Nidal Hasan reportedly killed 13 individuals in 2009.
Abdo, described in the media as a Muslim soldier in the 101st
Airborne Division at Fort Campbell, KY, was supposedly absent
without leave from the Army after applying for conscientious
objector status. A November 2011 superseding indictment
charged Abdo with one count of attempted use of a weapon of
mass destruction, one count of attempted murder of officers
or employees of the United States, two counts of possession
of a firearm in furtherance of a federal crime of violence,
and two counts of possession of a destructive device in
furtherance of a federal crime of violence. Abdo allegedly
purchased gunpowder, shotgun ammunition, and a magazine for a
semi-automatic pistol at a gun store near Fort Hood. An
employee at the gun store supposedly brought Abdo to the
attention of law enforcement officers. Federal officials have
noted that Abdo also possessed a .40 caliber handgun, bomb
making materials, and an article on how to construct an
explosive device, among other items. The article was from
Inspire, an English-language magazine produced by Al Qaeda in
the Arabian Peninsula.
(20) Ulugbek Kodirov--Plot to Assassinate President Obama--
July 2011.
Ulugbek Kodirov, an Uzbek living in Alabama, was arrested
when he sought assistance to kill President Obama either by
shooting him or using explosives. The affidavit said that the
source whom Kodirov contacted for help told authorities that
Kodirov supported Islamic extremists and regularly viewed
jihadist websites.
(21) Emerson Begolly--Plot to Encourage Jihadist Acts in
the United States--July 2011.
On July 14, 2011, Emerson Begolly, a U.S. citizen from New
Bethlehem, PA, was indicted for attempting to encourage
jihadists to commit acts of terrorism within the United
States and distributing information related to explosives
online. In August 2011, he pleaded guilty to ``soliciting
others to engage in acts of terrorism within the United
States and to using a firearm during and in relation to an
assault on FBI agents.'' According to DOJ, Begolly posted
``links to a 101-page document that contain[ed] information
on how to set up a laboratory, conduct basic chemistry, and
manufacture explosives.''
(22) Abu Khalid Abdul-Latif and (23) Walli Mujahidh--Plot
to Attack Seattle Military Processing Center--June 2011
On June 22, 2011, Abu Khalid Abdul-Latif and Walli
Mujahidh, were arrested on terrorism and firearms charges for
plotting to attack a Seattle military processing center. An
FBI sting operation apprehended the two as they took
possession of machine guns they had purchased for the plot.
The firearms had been rendered inert as part of the sting
operation. Assistant Attorney General for National Security
Todd Hinnen described the plot as, ``driven by a violent,
extreme ideology.'' While the two reportedly had not worked
out all of the details of their plot, they allegedly were
frustrated by ``American war policies'' and hoped for an
attack that would garner wide attention.
(24) Yonathan Melaku--Plot to Shoot Targets in Washington,
DC, Area--June 2011
On June 23, 2011, DOJ announced that Yonathan Melaku, an
Ethiopian native living in Alexandria, VA, was charged with
destruction of property and firearm violations. These charges
stemmed from five shootings at military installations in
Northern Virginia between October and November 2010. No one
was harmed in the shootings. It is unclear to what extent
Melaku, a Marine Corps reservist, was driven by jihadist
motivations; however, investigators linked Melaku to a spiral
notebook with numerous Arabic statements referencing the
Taliban, Al Qaeda, Osama bin Laden, ``The Path to Jihad,'' as
well as a list of several other individuals associated with
foreign terrorist organizations. Law enforcement officials
also found a video when they searched Melaku's bedroom. It
reportedly depicted ``Melaku in an automobile driving near
what appears to be the U.S. Marine Corps Heritage Museum and
repeatedly firing a handgun out the passenger-side window.''
In the video, he allegedly states, ``that's my target. That's
the military building. It's going to be attacked,'' and then
he shouts, ``Allah Akbar.''
(25) Waad Ramadan Alwan and (26) Mohanad Shareef Hammadi--
Material Support to Al Qaeda in Iraq--May 2011
Alwan and Hammadi were arrested on May 25, 2011 in Kentucky
on charges to commit conspiracy to kill U.S. nationals abroad
and provide material support, including weapons, to Al Qaeda
in Iraq among other charges.
(27) Ahmed Ferhani and (28) Mohamed Mamdouh--Plot to Attack
New York City Targets--May 2011
On May 12, 2011, Ahmed Ferhani (an Algerian native living
in Queens, NY) and Mohamed Mamdouh (a naturalized U.S.
citizen from Morocco) were arrested for plotting to blow up a
synagogue as well as churches in New York City. However, the
duo had not chosen a specific target. New York City officials
alleged that Ferhani was driven by a hatred of Jews and a
belief that Muslims are mistreated the world over. He and
Mamdouh allegedly had purchased firearms and a hand grenade
from an undercover detective posing as a gun dealer.
(29) Joseph Jeffrey Brice--Testing Explosives and Proving
Material Support to Terrorists--May 2011
Joseph Jeffrey Brice was arrested on charges of
manufacturing an unregistered firearm and later an additional
charge of providing material support for terrorism. Police
began to take an interest in Mr. Brice after he was seriously
injured in April 2010 while testing a homemade bomb.
Investigators discovered videos Brice posted that depicted
suicide bombings in Pakistan and links to a terrorism
magazine with instructions on how to make explosives. He also
posted bomb making videos to YouTube under the name
``StrengthofAllah.'' Mr. Brice also plotted with an
unidentified man to rob a Zions First National bank in Idaho
although the plot was never acted upon. Authorities believe
Brice was not a Muslim; rather, he assumed a Muslim identity
online in order to sell his bomb-making expertise.
(30) Hafiz Muhammed Sher Ali Khan, (31) Irfan Khan, and
(32) Izhar Khan,--Material Support to the Pakistani Taliban--
May 2011
Six individuals located in South Florida and Pakistan were
indicted in the Southern District of Florida on charges of
providing financing and other material support to the
Pakistani Taliban, a designated foreign terrorist
organization. Three of them were located abroad. Hafiz
Muhammed Sher Ali Khan, Irfan Khan, and Izhar Khan were
arrested in the U.S.
(33) Kevin William Harpham--Attempt to Use an Explosive
Device--March 2011
On March 9, 2011, Kevin Harpham was arrested for placing an
explosive device alongside a planned Martin Luther King Jr.
Day Unity March. Harpham admitted that he was a white
supremacist and white separatist.
(34) Khalid Ali-M Aldawsari--Plot to Bomb U.S. Targets--
February 2011
On February 23, 2011, FBI agents arrested Khalid Ali-M
Aldawsari, a citizen of Saudi Arabia and resident of Lubbock,
TX. He was charged with attempted use of a weapon of mass
destruction. He also allegedly plotted to purchase material
to make an improvised explosive device and had researched
potential U.S. targets. A chemical supplier provided
information to the FBI about a suspicious attempted purchase
by Aldawsari. Prosecutors have stated that among the targets
Aldawsari researched was the home address for former
President George W. Bush. He also researched the names and
home addresses of three American soldiers who had previously
served at Abu Ghraib prison in Iraq.
(35) Roger Stockham--Plot to Attack Shia Mosque in
Michigan--January 2011
Roger Stockham was arrested on January 24, 2011 outside the
Islamic Center of America in Dearborn, Michigan. Mr.
Stockham, a Vietnam veteran from Southern California, was
caught with explosives in his vehicle outside the Michigan
mosque. Authorities found a large but undisclosed quantity of
class-C fireworks including M-80s, which are banned in
Michigan, in his car. Mr. Stockham had a history of mental
health issues and criminal acts ranging from kidnappings to
attempted bombings.
(36) Antonio Martinez--Plot to Bomb Armed Forces Recruiting
Center--December 2010
Antonio Martinez (aka Muhammad Hussain), a U.S. citizen
from Baltimore was charged with attempting to detonate a bomb
outside of a U.S. Armed Forces recruiting center in
Catonsville, Maryland on December 8, 2010. Unbeknownst to
him, Mr. Martinez was working with undercover FBI agents the
whole time as they had been monitoring him since October 1,
2010 when a confidential source tipped off authorities to the
potential danger. Martinez had attempted to recruit up to
five other people to his plot, but they all declined to help
him.
(37) Mohamed Osman Mohamud--Plot to Bomb Christmas Tree
Lighting Ceremony--November 2010
Mohamed Osman Mohamud a US Citizen from Somalia was charged
with attempting to detonate a vehicle bomb at a Christmas
[[Page S7022]]
tree lighting ceremony in Portland, OR on November 26, 2010.
The arrest was the culmination of a months-long investigation
and the explosives he was trying to detonate were inert.
Mohamud was in touch with contacts in Pakistan and he was
trying to travel overseas to engage in a violent jihad,
according to the FBI. Mohamud told undercover agents that he
had been trying to commit a violent jihad for 4 years, since
he was 15.
(38) Mohamud Abdi Yusuf and (39) Abdi Mahdi Hussein--
Material Support to Al-Shabaab and Conspiracy to Structure
Financial Transactions--November 2010
On November 1, 2010, Mohamud Abdi Yusuf was arrested on
charges of providing material support to al Shabaab and one
charge of conspiracy to structure financial transactions.
Abdi Mahdi Hussein was arrested one day later on a charge of
conspiracy to structure financial transactions. The
indictment alleged that Yusuf and Hussein sent funds to al
Shabaab supporters in Somalia from licensed money remitting
businesses operating in the United States, in part by using
fictitious names and telephone numbers to conceal the nature
of their activities.
(40) Farooque Ahmed--Plot to Bomb Washington, DC, Subway
Stations--October 2010
Farooque Ahmed was arrested on October 27, 2010, and
charged with conspiring with others he believed to be Al
Qaeda operatives to bomb subway stations in Washington, DC.
His co-conspirators turned out to be undercover law
enforcement officers.
(41) Abdel Hameed Shehadeh--Travel Abroad to Wage Jihad--
October 2010
Abdel Hameed Shehadeh was arrested on October 22, 2010, in
Honolulu, HI. Among the accusations against him were that he
tried to join the U.S. military so he could be deployed to
Iraq but would desert and fight with anti-American insurgency
forces.
(42) Sami Samir Hassoun--Plot to Detonate an Explosive
Device--September 2010
Sami Samir Hassoun was charged with one count each of (1)
attempted use of a weapon of mass destruction and (2)
attempted use of an explosive device after placing a backpack
which he thought contained an explosive device into a
curbside trash receptacle near a crowded nightclub.
(43) Amina Ali and (44) Hawo Hassan--Material Support to
Terrorist Group al Shabaab--August 2010
On August 15, 2010, 2 Americans and 12 others were charged
with terrorism-related crimes linked to the Somali-based
organization known as al Shabaab. There were only two arrests
of Amina Ali and Hawo Hassan women charged with raising money
to support al Shabaab through door-to-door solicitations and
teleconferences in Somali communities in Minnesota.
Indictments were also unsealed in Minnesota, Alabama, and
California charging the other 12 individuals who were
believed to be fugitives in Somalia.
(45) Shaker Masri--Attempted Travel to Somalia or
Afghanistan to Fight--August 2010
Shaker Masri was arrested by the FBI on August 3, 2010,
just before he was allegedly planning to travel to Somalia or
Afghanistan to join either al-Shabaab or Al Qaeda. The FBI
used a cooperating source who met Masri in November 2008 and
subsequently consensually recorded conversations with him for
the investigation. According to court documents, Masri
encouraged the cooperating source to ``review speeches'' by
Anwar al-Awlaki.
(46) Paul Gene Rockwood and (47) Nadia Rockwood--Charged
with Perjury in a Terrorism Investigation--July 2010
Both Paul Rockwood and his wife pleaded guilty to one count
of willfully making false statements to the FBI involving
terrorism. According to the plea agreements and other
documents filed with the court, Paul Rockwood converted to
Islam, and later became a strict adherent to the violent
jihad-promoting ideology of cleric Anwar Al-Awlaki. According
to the filed court documents, after he moved to King Salmon,
Alaska in 2006, Paul Rockwood continued his adherence to Al-
Awlaki's ideology and by early 2010, he formalized a target
list to include 15 specific locations all outside the state
of Alaska. In April 2010, Paul Rockwood gave his written
target list to his wife, Nadia, who, knowing of its purpose,
carried the list with her on a trip to Anchorage. The FBI's
Joint Terrorism Task Force (JTTF) subsequently obtained the
target list. On May 19, 2010, JTTF agents questioned Paul
Rockwood and provided him a copy of the target list. In
response to agents' questions, Rockwood made false
statements, denying he had created such a list, denying the
purpose of the list and denying ever having such a list. JTTF
agents also questioned Nadia Rockwood on May 19, 2010, about
transporting the target list authored by her husband to
another person. In response, Nadia Rockwood also made false
statements to FBI agents.
(48) Zachary Adam Chesser and (49) Proscovia Kampire
Nzabanita--Conspiracy to Murder ``South Park'' Creators--July
2010
On July 21, 2010, Zachary Adam Chesser, of Fairfax County,
Va., was arrested on charges that he provided material
support to al-Shabaab, a designated foreign terrorist
organization. According to court documents, Chesser
maintained several online profiles dedicated to extremist
jihad propaganda. Chesser eventually admitted to encouraging
violent jihadists to attack the writers of South Park,
including highlighting their residence and urging online
readers to ``pay them a visit.'' Chesser's wife, Proscovia
Kampire Nzabanita, eventually pleaded guilty to making a
false statement to an FBI agent during the course of the
FBI's investigation of her husband.
(50) Mohamed Alessa and (51) Carlos Almonte--Attempting
Material Support to Terrorism--June 2010
On June 5, 2010, two New Jersey residents, Mohamed Alessa
and Carlos Almonte, were arrested at JFK in New York prior to
boarding separate flights to Egypt. Authorities alleged the
two had hoped to eventually link up with al-Shabaab in
Somalia. The following day, they were charged with conspiracy
to kill Americans abroad. They are alleged to have vowed to
``slice up'' troops in ``a thousand pieces,'' according to
the criminal complaint which cites conversations secretly
recorded by a NYPD undercover officer.
(52) Tarek Mehanna--Providing Material Support to Al
Qaeda--June 2010
Tarek Mehanna (of Sudbury, Massachusetts) and Ahmad
Aboursamra (a fugitive in Syria) were charged with conspiring
to aid Al Qaeda, as well as attempting to commit murder in a
foreign country, conspiracy to commit provide false
information to law enforcement, as well as a number of other
counts of false statements to law enforcement. Only Mehanna
was arrested.
(53) Barry Walter Bujol, Jr.--Attempting to Provide
Material Support to Al Qaeda--June 2010
Barry Walter Bujol, Jr. was charged with attempting to
provide material support to AQAP and aggravated identity
theft.
(54) Faisal Shahzad--Attempted Car Bombing in Times
Square--May 2010
Fasial Shahzad was arrested on May 3, 2010 and eventually
pleaded guilty to 10 crimes stemming from attempting to
detonate a car bomb in Times Square on May 1, 2010. Shahzad
was apprehended after being identified at JFK Airport after
U.S. Customs agents recognized him from video taken at Times
Square. Two other individuals were indicted in connection
with this terrorist plot:
(55) Mohammad Younis was arrested in September 2010 and
accused of operating an unlicensed money transmitting
business which provided funds to Faisal Shahzad. There are no
allegations, however, that Younis was aware of the intended
use of the money. In the indictment, he was charged with
operating an unlicensed money transfer business between the
United States and Pakistan and conspiracy to operate an
unlicensed money transfer business. In August 2011, he
pleaded guilty to the former charge.
(56) Aftab Ali was charged in a criminal complaint in
November 2010 with immigration fraud and making false
statements. The complaint alleges that Ali provided $4,900 to
Shahzad in February 2010 as part of a hawala transaction. The
complaint does not allege that Ali was aware of the intended
use of the money by Shahzad, but in April 2011, Ali pleaded
guilty to charges of unlicensed money transmitting and
immigration document fraud. He was sentenced to time served
and ordered to be deported.
(57) Khalid Ouazzani--Providing Material Support to Al
Qaeda--May 2010
Ouazzani swore an oath of allegiance to Al Qaeda in June
2008. Ouazzani admitted that, from August 2007 to February
2010, he participated in a conspiracy to provide material
support or resources to Al Qaeda. Ouazzani admitted that he
personally provided more than $23,000 to Al Qaeda and
performed other tasks at the request of and for the benefit
of Al Qaeda. Ouazzani also had conversations with others
about various ways to support Al Qaeda, including plans for
them to fight in Afghanistan, Iraq, or Somalia.
(58) Wesam el-Hanafi and (59) Sabirhan Hasanoff--Providing
Material Support to Al Qaeda--April 2010
Wesam el-Hanafi and Sabirhan Hasanoff were indicted for
conspiring to provide material support, including computer
advice and assistance, to Al Qaeda.
(60) Colleen R. LaRose, (61) Jamie Paulin Ramirez, and (62)
Mohammad Hassan Khalid--Material Support to Terrorists--March
2010
On March 9, 2010 Colleen LaRose was charged with conspiracy
to provide material support to terrorists, conspiracy to kill
in a foreign country, making false statements to a government
official, and attempted identity theft. The indictment
charged that LaRose, an American citizen who went by the
alias ``Jihad Jane'', was part of a group who recruited men
on the Internet to wage violent jihad in South Asia and
Europe, and recruited women on the Internet who had passports
and the ability to travel to and around Europe in support of
violent jihad. Additionally, LaRose was accused of directly
plotting to kill a citizen of Sweden. LaRose, aka ``Jihad
Jane,'' pleaded guilty in February 2011 in the Eastern
District of Pennsylvania and Ramirez pleaded guilty in the
Eastern District of Pennsylvania in March 2011.
On April 2, 2010, Jamie Paulin Ramirez, a U.S. citizen and
former resident of Colorado, was also charged with conspiracy
to provide material support to terrorists, and linked to the
same group as LaRose. The superseding indictment charged that
LaRose and Ramirez traveled to and around Europe to
participate in and in support of violent jihad.
Finally, on October 20, 2011, Mohammad Hassan Khalid was
also charged with providing material support to terrorists
linking back to the same case as LaRose and Ramirez. The
indictment alleged that, from about 2008 through July 2011,
Khalid conspired with LaRose, Ramirez, and others to provide
material support and resources, including
[[Page S7023]]
logistical support, recruitment services, financial support,
identification documents and personnel, to a conspiracy to
kill overseas.
(63 through 71) Nine Members of Militia Group ``The
Hutaree'' Charged with Attempted Use of Weapons of Mass
Destruction--March 2010
Six Michigan residents, two Ohio residents, and a resident
of Indiana were charged with attempted use of weapons of mass
destruction among other charges. The indictment alleged that
nine individuals who were part of the Lenawee County Michigan
militia group called the Hutaree, conspired to oppose by
force the authority of the U.S. government. The indictment
further alleged that the Hutaree planned to kill an
unidentified member of local law enforcement and then attack
the law enforcement officers who gathered for the funeral.
According to the plan, the Hutaree would attack law
enforcement vehicles during the funeral procession with
improvised explosive devices, which, according to the
indictment, constitute weapons of mass destruction.
(72) Raja Ladrasib Khan--Provided Material Support to Al
Qaeda--March 2010
Khan was arrested and charged with sending money orders to
Ilyas Kashimiri, a Pakistani Al Qaeda Leader on multiple
occasions knowing that the money was going to a terrorist
organization.
(73) Hosam Maher Husein Smadi--Attempting to use a Weapon
of Mass Destruction--March 2010
On September 24, 2009, Hosam Maher Husein Smadi was
arrested and charged in a federal criminal complaint with
attempting to use a weapon of mass destruction after he
placed an inert/inactive car bomb near Fountain Place, a 60-
story glass office tower in downtown Dallas. Smadi repeatedly
espoused his desire to commit violent jihad and had been the
focus of an undercover FBI investigation.
(74) Omer Abdi Mohamed--Conspiring to Provide Material
Support to Murder, Kidnap, and Maim Abroad--November 2009
The indictment alleged that Omer Abdi Mohamed conspired to
provide material support to kill, kidnap, maim, or injure
persons in a foreign country. Among the activities alleged
against Mohamed were that he recruited young men to send to
Somalia to fight for al-Shabaab. In July 2011, Mohamed
pleaded guilty to the charges filed against him.
(75) Abdow Munye Abdow--False Statements in a Terrorism
Investigation--October 2009
On October 13, 2009, a federal grand jury returned a two-
count indictment charging Abdow Munye Abdow with making false
statements to the FBI after being stopped during a road trip
from Minneapolis to Las Vegas with young men, allegedly
facilitating their travel to Somalia to fight for al-Shabaab.
(76) David Coleman Headley and (77) Tahawwur Hussain Rana--
Terrorism Conspiracy--October 2009
On October 29, 2009, David Coleman Headley and Tahawwur
Hussain Rana were arrested for their alleged roles in
conspiracies to provide material support and/or to commit
terrorist acts against overseas targets, including facilities
and employees of a Danish newspaper that published cartoons
of the Prophet Mohammed in 2005. Eventually Headley pleaded
guilty to a dozen charges of terrorism stemming from the
November 2008 terrorist attack in Mumbai, India. Headley also
admitted to attending training camps in Pakistan to prepare
for terrorist attacks and to traveling to Mumbai to conduct
surveillance in 2005.
(78) Najibullah Zazi, (79) Adis Medunjanin, and (80) Zarein
Ahmedzay--Conspiracy to Use Weapons of Mass Destruction--
September 2009
On Sept. 8, 2009, Zazi drove from Denver to New York,
carrying explosives and other materials necessary to build
bombs and carry out attacks in New York City, including a
plan to bomb the New York subway system. However, shortly
after arriving in New York, Zazi learned that law enforcement
was investigating his activities, so he traveled back to
Denver, where he was arrested on Sept. 19, 2009. Medunjanin
and Ahmedzay were later arrested in connection with Zazi's
bombing plot. All three men had traveled to Pakistan for
terrorist training and along with others, planned the New
York terrorist attacks. Three other individuals were indicted
in connection with this terrorist plot:
(81) Mohammed Wali Zazi, Najibullah Zazi's father was
arrested in the fall of 2009 for lying to investigators. On
February 1, 2010, he was indicted for conspiring to dispose
of his son's bomb-making materials and chemicals. In July
2011, the elder Zazi was found guilty in federal court on one
count of conspiracy to obstruct justice and one count of
obstruction of justice.
(82) Ahmad Wais Afzali, a Queens Imam, was arrested for
tipping off Zazi to the FBI investigation. Afzali had been a
source of information for federal and New York City
investigators in the past. On March 4, 2010, Afzali pleaded
guilty to lying to federal officials. He stated in court that
he lied about a conversation he had with Zazi tipping him off
to the FBI's investigation.
(83) Naqib Jaji, Zazi's uncle, eventually pleaded guilty to
obstructing justice.
(84) Michael Finton--Plot to Bomb the Springfield,
Illinois, Federal Building--September 2009
On September 23, 2009, Michael C. Finton, who had converted
to Islam was arrested after he drove a van he thought was
loaded with explosives--but was actually full of inert
materials provided to him by the FBI--to the Paul Findley
Federal Building in Springfield, IL. Prosecutors say he
parked and locked the vehicle, then moved a few blocks away
before twice making cell phone calls he believed would
trigger a blast that would kill or injure people inside the
building. In May 2011, he pleaded guilty to attempting to
bomb the building and was sentenced to 28 years in prison.
(85) Daniel Patrick Boyd, (86) Hysen Sherifi, (87) Anes
Subasic, (88) Zakariya Boyd, (89) Dylan Boyd, (90) Mohammad
Omar Aly Hassan, and (91) Ziyad Yaghi--Terrorism Violations--
July 2009
On July 27, 2009, seven individuals in North Carolina were
charged with conspiring to provide material support to
terrorists and conspiring to murder, kidnap, maim, and injure
persons abroad. The indictment alleged that Daniel Boyd and
the other defendants conspired to provide material support
and resources to terrorists, including currency, training,
transportation, and personnel. The defendants also conspired
to murder, kidnap, maim, and injure persons abroad during
this period. The object of the conspiracy, according to the
indictment, was to advance violent jihad.
(92) James Cromitie, (93) David Williams, (94) Onta
Williams, and (95) Laguerre Payen--Plot to Blow up Synagogues
and Shoot down U.S. Military Planes--May 2009
These four men were arrested for plotting to bomb
synagogues in the Bronx, New York. Additionally, they planned
to use Stinger, surface to air missiles, to shoot down
military planes at New York Air National Guard Base. The men
were contacted by FBI informants and given inert weapons,
which they proceeded to try and use, which is when they were
apprehended.
(96) Salah Osman Ahmed--Providing Material Support to al-
Shabaab--July 2009
On February 19, 2009, Salah Osman Ahmed pleaded guilty to
providing material support to al-Shabaab.
(97) Abdifatah Yusuf Isse--Providing Material Support to
al-Shabaab--April 2009
On February 19, 2009, Abdifatah Yusuf Isse guilty to
providing material support to al-Shabaab.
(98) Kamal Said Hassan--Providing Material Support to al-
Shabaab--February 2009
On February 19, 2009, Kamal Said Hassan pleaded guilty to
providing material support to al-Shabaab and making false
statements to the FBI.
Mrs. FEINSTEIN. It is also important to understand that suspected
terrorists who may be in the United States illegally can be detained
within the criminal justice system using at least the following four
options: One, they can be charged with a Federal or State crime and
held; two, they can be held for violating immigration laws; three, they
can be held as material witnesses as part of Federal grand jury
proceedings; and, four, they can be held under section 412 of the
PATRIOT Act for up to 6 months.
I wish to be very clear about what this amendment is and what it is
not about. It is not about whether citizens such as Hamdi and Padilla
or others who would do us harm should be captured, interrogated,
incarcerated, and severely punished. They should be. But what about an
innocent American? What about someone in the wrong place at the wrong
time with the wrong skin color?
The beauty of our Constitution is that it gives everyone in the
United States basic due process rights to a trial by a jury of their
peers. That is what makes this Nation great. As Justice Sandra Day
O'Connor wrote for the plurality in Hamdi v. Rumsfeld:
As critical as the Government's interests may be in
detaining those who actually pose an immediate threat to the
national security of the United States during ongoing
international conflict, history and common sense teach us
that an unchecked system of detention carries the potential
to become a means for oppression and abuse of others who do
not present that sort of threat.
Just think of it. If someone is of the wrong race and they are in a
place where there is a terrorist attack, they could be picked up, they
could be held without charge or trial for month after month, year after
year. That is wrong. Experiences over the last decade prove the U.S. is
safer now than before the 9/11 attacks. Terrorists are behind bars,
dangerous plots have been thwarted. The system is working and hopefully
improving each day.
So I think now is the time to clarify U.S. law to state unequivocally
that the government cannot without trial or charge indefinitely detain
Americans and green card holders captured inside this country.
The Federal Government experimented with indefinite detention of U.S.
citizens during World War II, a mistake we now recognize as a betrayal
of our core values. Let's not repeat it. I urge my colleagues to
support this amendment.
[[Page S7024]]
I yield the floor for Senator Paul.
The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Kentucky.
Mr. PAUL. Mr. President, I rise to support Senator Feinstein's
amendment. I compliment her on her work. I also echo the importance of
the right to trial by jury. In fact, I am appalled that anyone would
think we could arrest anyone in our country without charging them and
giving them a right to a trial. It seems so fundamentally un-American.
I agree with her also that I think the Supreme Court would apply this
to anyone. Our amendment will say citizens and permanent residents. But
I think the Supreme Court, if challenged, will uphold the right to
trial by jury of anyone within the United States.
Today, we will either affirm the right to trial by jury or restrict
it. Today, we will vote to affirm the sixth amendment to the
Constitution or we will spurn it. Today, we will vote to affirm 800
years of history, beginning with the Magna Carta, or we will relinquish
or, at the very least, diminish a right that Jefferson referred to as
``the only anchor yet imagined by man, which a government can be held
to the principles of its Constitution.'' The right to trial by jury was
a check on oppressive government.
Opponents of the right to trial by jury will come and they will argue
that the American homeland is now a battlefield and that we must
circumscribe our right to trial by jury to be safe from terrorists. But
if we give up our rights, have not the terrorist won? If we let fear
relinquish our rights--if we relinquish our rights because of fear,
what is it exactly then we are fighting for?
We are asked to relinquish our rights because the battlefield is
limitless. It is, though, not a temporary suspension they are asking
for, and they request this because they also say the battle is also
without limit. This is not a war that is going to end, nor is it a
right they will suspend temporarily. They are asking people to
relinquish their right to trial by jury for the rest of this limitless
war.
Those Senators who would propose limiting the right to trial by jury,
they deflect and demur that everyone will still have a habeas hearing.
A habeas hearing is important. They must present the body and a judge
might say: Why are you holding this person? But it is not the end of
due process; it is the beginning of due process.
A habeas hearing is not due process. It is the beginning. We must
still have a trial by jury or we do not have the due process our
Founding Fathers fought for. Those Senators who would abridge this and
say a habeas hearing is enough should remember Blackstone's admonition,
``Every new tribunal, erected for the decision of facts without the
intervention of a jury . . . is a step towards establishing
aristocracy, the most oppressive of absolute governments.''
We are told we cannot do this. We have to put these people outside
the constitutional court, that somehow we need something beyond the
Constitution, that the Constitution is not enough to convict
terrorists. Yet hundreds of terrorists have been convicted. In fact,
two terrorists in my little small town, Bowling Green, KY, were
apprehended and were tried and were convicted to life for terrorism. We
can do it.
We are told that only terrorists associated with al-Qaida will this
be applied to. We will only take away the right to trial by jury if
they are part of al-Qaida. But part of the security apparatus also
tells us to know your neighbor. Know your neighbor so you can report
your neighbor.
In fact, we are told by the government some of the characteristics
that might make you a terrorist. We are told by the Department of
Justice that if you have stains on your clothing, that if you are
missing fingers, if you have changed the color of your hair recently,
that if you prefer to pay in cash, that if you own weatherized
ammunition, if you own multiple guns, you might be a terrorist; that
your neighbor should report you.
Do we want to relinquish our right to trial by jury if the
characteristics of terrorism are wanting to pay by cash? In Missouri,
they had fusion centers. They are supposed to accumulate information
about terrorists and sort of assimilate Federal and local and have
better communications.
Sounds good. I am all for better communications. Before 9/11 we did
mess up. We did not communicate well. But from this fusion center comes
a document that says: Beware of people who have bumper stickers
supporting third-party candidates, beware of people who believe in
stricter immigration laws, beware of people who support the right to
life; they might be terrorists. This is an official document. Do we
want to give up the right to trial by jury when we are being told
someone who keeps food in their basement might be a terrorist?
Am I the only one who fears the relinquishing of a right we have had
for 800 years? Am I the only one who fears that a terrorist might be
someone whom we might describe as someone who is a constitutionalist?
This is an ancient right to trial by jury we have had since virtually
the beginning of our historic times. The Greeks and the Romans had a
form of right to trial by jury.
In 725 A.D., Morgan of Glamorgan, the Prince of Wales, said, ``For as
Christ and his Twelve Apostles were finally to judge the world, so
human tribunals should be composed of twelve wise men.'' We have been
doing this for hundreds upon hundreds of years. We saw it as a way to
check the oppression of the King but also to check the potential
oppression of government.
England and America have for centuries prized this right to trial by
jury. It seems a shame to scrap it now. Our Founders believed so firmly
in the right to trial by jury that they enshrined it in the body of the
Constitution, again in this sixth amendment and again every State of
the Union has within the body of its constitution the right to trial by
jury.
It seems a shame to scrap it now. Churchill proudly remembers our
joint devotion to trial by jury. He writes, ``We must never cease to
proclaim in fearless tones the great principles of freedom and the
rights of man which are the joint inheritance of the English-speaking
world and which through the Magna Carta, the Bill of Rights, habeas
corpus, trial by jury and the English common law find their most famous
expression in the Declaration of Independence.''
Senator Lafollette, a famous Senator from Wisconsin, put it well. He
said:
Let no man think that we can deny civil liberty to others
and retain it for ourselves. When zealot agents of the
government arrest suspected radicals without warrant, hold
them without prompt trial, deny them access to counsel and
admission of bail . . . we have shorn the Bill of Rights of
its sanctity . . .
Today we have a chance to reaffirm our belief in the right to trial
by jury. We have a chance to replace fear with confidence, confidence
that no terrorist and no country will ever conquer us if we remain
steadfast, steadfast to the principles of our founding documents.
We have nothing to fear except our own unwillingness to defend what
is naturally ours, our God-given rights. We have nothing to fear that
should cause us to relinquish our rights as free men and women. I urge
my colleagues to reject fear, to reject the siren call for an ever more
powerful government.
Justice White put it well when he said:
A right to jury trial is granted criminal defendants in
order to prevent the oppression by the government.
It is not just about a fair trial, it is about checking your
government. This vote today is about more than just combating terrorism
or a fair trial, it is about relinquishing the right to the checks and
balances, to the checks that cause and help us to check the relentless
growth of government. It is about whether a free people are willing to
remain steadfast in our defense of an 800-year-old right that finds
justice for the accused and provides restraint and limits on despotism.
I hope my colleagues will today vote against limitations on the trial
by jury, recognize its sanctity, and recognize the importance of
something that brings Members from the right side of the aisle together
with Members of the left side of the aisle who believe strongly in the
defense of the Bill of Rights.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
[[Page S7025]]
Mr. LEE. Mr. President, I rise today to speak in favor of the
Feinstein-Lee amendment to the National Defense Authorization Act. At
the outset, I wish to note this amendment is the product of bipartisan
discussion and collaboration on an issue that is important to all
Americans. I am pleased to have been a part of that process.
Senator Feinstein and I have worked closely together over the course
of the past year to craft what we believe represents a very prudent
course in protecting both our Nation and our liberties at the same
time. Security is important. And precisely because it is important it
must not be acquired at the expense of our individual liberty. It may
well be said that government's most important basic responsibility is
to protect the liberties of its citizens. Our Nation has fought wars on
American soil and around the world in defense of individual liberty,
and we must not sacrifice this most fundamental right in pursuit of
greater security, especially when we can achieve security without
compromising liberty.
The Feinstein-Lee amendment does precisely that. It protects liberty
by ensuring that no American will be deprived of due process. The fifth
amendment states:
No person . . . shall be deprived of life, liberty or
property, without due process of law.
The sixth amendment, likewise, guarantees that individuals accused of
a crime will have access to an attorney and access to a trial by a jury
consisting of that person's peers. Our amendment protects those rights
and it provides the following:
An authorization to use military force, a declaration of
war, or any similar authority shall not authorize detention
without charge or trial of a citizen or lawful permanent
resident of the United States apprehended in the United
States.
It is important to note the Supreme Court has never specifically held
that an authorization for the use of military force somehow authorizes
the indefinite detention of a U.S. citizen or a U.S. person apprehended
within the United States, and I don't think we should break new ground
here. I don't think we should start opening that precedent and suggest
that is somehow acceptable. The Constitution does, in fact, require
nothing less than traditional due process for all Americans apprehended
within the United States.
As Supreme Court Justice Anthony Scalia has written:
The gist of the Due Process Clause, as understood at the
founding and since, was to force the government to follow . .
. common-law procedures traditionally deemed necessary before
depriving a person of life, liberty, or property. When a
citizen was deprived of liberty because of alleged criminal
conduct, those procedures typically required committal by a
magistrate followed by indictment and trial.
I understand and respect, of course, the fact that we live in
perilous times. We, unfortunately, as Americans have enemies not only
around the world but even within our own borders. This is unfortunate.
This creates challenging times for us. I hope and pray every day we
will be successful in fending off those who would harm us, those who
hate our way of life and everything about us and will do everything in
their power to destroy us and our liberty. But that does not--it
cannot, it will not--mean we, as Americans, should surrender our basic
instinct to be free.
We must stand behind our 225-year-old founding document as it has
been amended to ensure that our liberty isn't taken away from us to
give us a path toward providing for our security without jeopardizing
the freedom our American citizens cherish so much and have fought so
hard and for so long to protect.
Granting the U.S. Government the power to deprive its own citizens of
life, liberty, or property without full due process of law goes against
the very nature of our Nation's great constitutional values. This
amendment--the Feinstein-Lee amendment--protects those values. I urge
my colleagues to support it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, somewhere on this desk I have a unanimous
consent request.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that Senator
Baucus be added as a cosponsor to my amendment No. 3018.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I yield the floor, and I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEVIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Ms. COLLINS. Mr. President, I ask unanimous consent that Senator
DeMint be added as a cosponsor of the amendment entitled ``Feinstein-
Collins amendment No. 3018.''
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, I rise to speak in support of the
amendment offered by Senator Feinstein. The purpose of our amendment is
to make clear that a U.S. citizen or legal permanent resident arrested
in this country cannot be detained indefinitely without charge or
trial. This amendment is necessary because current law with respect to
the indefinite detention of U.S. citizens within the United States
remains unclear after more than 11 years of a persistent conflict in
which the enemy often does not distinguish itself from civilians.
Without this amendment, it is conceivable that an American citizen
could be arrested, detained, and held without charge or trial in order
to address the gap in the law. Our amendment is necessary.
Last year the fiscal year 2012 National Defense Authorization Act
defined the scope of the detention authority provided under the 2001
Authorization for Use of Military Force for detainees captured outside
the United States. But the scope of detention authority, as it relates
to U.S. citizens and lawful residents captured or arrested inside the
United States, was left nebulous.
Because of this legal ambiguity, despite the guarantees enshrined in
our Constitution, an American citizen could be indefinitely detained
without charge or trial, even if they are detained in the United
States.
I do not believe that many of us intended to authorize such a
sweeping detention authority within the United States when we voted to
allow our military to pursue al-Qaida following the 9/11 attacks.
Because Congress was responsible for authorizing the use of military
force in the first place, it is our duty, our obligation, to define
carefully the scope of the detention authority we intended in the AUMF.
If we do not clarify this important issue, the Federal courts and the
executive branch will be left to substitute their judgment for ours.
This amendment specifically addresses the issue of American citizens
and lawful permanent residents detained in the United States, and it
would clarify that it is not the intention of the Congress to allow for
their indefinite detention.
Let me briefly mention what the Feinstein-Collins amendment does not
do.
First, it does not change the ruling in Hamdi v. Rumsfeld. In that
case, the Supreme Court ruled that an American citizen who wages war
against U.S. troops in an active combat zone can be taken into
preventive detention in order to keep that person from continuing to
wage war overseas against American military forces.
When an American citizen leaves this country to wage war against his
fellow citizens, he relinquishes certain rights, otherwise supported by
the Constitution, and I agree with the Court's decision in this case.
Next, this amendment does not preclude intelligence gathering
subsequent to a suspected terrorist being taken into detention.
The intelligence gathered from a suspect in the hours or days after
his arrest can be vital to preventing further acts of violence or in
uncovering terrorist networks at home or abroad. This amendment
balances the ability to gather this important information with the
suspect's rights by providing some flexibility within the
Constitution's bounds.
For example, it does not circumscribe the existing public safety
exception to Miranda. This exception permits law enforcement, in
certain circumstances, to engage in a limited and focused unwarned
interrogation and allows the government to introduce the statement as
direct evidence in a judicial proceeding. Law enforcement officials,
confronted with an emergency, may question a suspect held in custody
about an imminent threat to public safety without providing Miranda
warnings first.
In addition, nothing precludes other Federal agents from gathering
intelligence without providing Miranda rights. Under current law, a
U.S. citizen cannot be tried in a military tribunal, and that does not
change under our amendment.
Finally, this amendment does not change the treatment of those who
are here on temporary visas, such as students or travelers--the kind of
visas that were used by the 9/11 terrorists.
In closing, let me talk about how this amendment would have changed
the treatment of some U.S. citizens detained under the authorization
for use of military courts during the last 11 years had it become law.
First, because this amendment only covers American citizens captured
in
[[Page S7027]]
the United States, it would not have affected the detention of John
Walker Lindh, for example. So the only U.S. citizen affected by this
amendment would have been Jose Padilla. If this amendment were the law,
Jose Padilla's detention would have ended as it did under the Bush
administration--in a Federal courtroom, where he was charged with
aiding terrorists in a terrorist organization.
Since 2001 terrorism has claimed far too many victims, both abroad
and here in our country. But it is crucially important that in pursuing
the war on terrorism, we must assure our fellow citizens their
constitutional rights--the very foundation of what makes us Americans.
For this reason, I am proud to be a cosponsor of Senator Feinstein's
amendment, and I strongly urge its adoption.
[...]
