[Congressional Record Volume 158, Number 151 (Thursday, November 29, 2012)]
[Senate]
[Pages S7148-S7206]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013--Continued
[...]
Amendment No. 3018
Mrs. FEINSTEIN. I ask unanimous consent to call up amendment No.
3018.
The ACTING PRESIDENT pro tempore. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from California [Mrs. Feinstein], for herself,
Mr. Lee, Mr. Coons, Ms. Collins, Mr. Paul, Mr. Lautenberg,
Mrs. Gillibrand, and Mr. Kirk, proposes an amendment numbered
3018.
Mrs. FEINSTEIN. I ask unanimous consent that the reading of the
amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
(Purpose: To clarify that 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)
At the end of subtitle D of title X, add the following:
SEC. 1032. PROHIBITION ON THE INDEFINITE DETENTION OF
CITIZENS AND LAWFUL PERMANENT RESIDENTS.
Section 4001 of title 18, United States Code, is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following:
``(b)(1) 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.
``(2) Paragraph (1) applies to an authorization to use
military force, a declaration of war, or any similar
authority enacted before, on, or after the date of the
enactment of the National Defense Authorization Act For
Fiscal Year 2013.
``(3) Paragraph (1) shall not be construed to authorize the
detention of a citizen of the United States, a lawful
permanent resident of the United States, or any other person
who is apprehended in the United States.''.
Mrs. FEINSTEIN. I note that Senator Lee is on the floor, and I know
he wants to speak as he is a cosponsor of this amendment. So I will
yield to him, and then when he finishes I will speak.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. LEE. Mr. President, I appreciate the opportunity to speak
regarding amendment No. 3018, the Feinstein-Lee amendment.
It has come to my attention that some opponents of the Feinstein-Lee
amendment have made an argument that habeas corpus is sufficient to
protect the rights of Americans apprehended on American soil and
detained by the United States Government. This is nothing more than
another way of suggesting that the government should be able to detain
some Americans indefinitely without charge or trial. I disagree and
believe that our constitutional traditions demand more than this--
significantly more.
The fifth amendment of our Constitution provides that ``No person . .
. shall be . . . deprived of life, liberty, or property without due
process of law.''
As Supreme Court Justice Antonin 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.
This right of American persons to due process of law is foundational
to the very idea of individual liberty from unwarranted government
intrusion.
I have worked with Senator Feinstein and other colleagues on both
sides of the aisle to craft an amendment originally entitled the Due
Process Guarantee Act to ensure that this basic constitutional right is
indeed protected. I believe even with the serious national security
threats we now face, America must hold fast to our most fundamental
constitutional rights and liberties.
The U.S. Government should not be authorized to detain Americans
indefinitely without charge and without trial. As Justice Scalia
explained, the proposition that the Executive lacks indefinite wartime
detention authority over citizens is consistent with the Founders'
general mistrust of military power permanently at the Executive's
disposal.
I believe it is clear that the Founders of our Constitution were
acutely aware of this critical tradeoff--the tradeoff
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we still face today--between safety on the one hand and freedom on the
other. On this very point, Alexander Hamilton was prescient. He wrote:
Safety from external danger is the most powerful director
of national conduct. Even the ardent love of liberty will,
after a time, give way to its dictates. The violent
destruction of life and property incident to war; the
continual effort and alarm attendant on a state of continual
danger, will compel nations the most attached to liberty, to
resort for repose and security to institutions which have a
tendency to destroy their civil and their political rights.
To be more safe they, at length, become willing to run the
risk of being less free.
Our Nation's Founders warned us about the great danger of sacrificing
our most basic liberties in the pursuit of security--security at all
costs. They provided us with a Constitution framed to prevent precisely
such a tragic outcome.
I urge my colleagues to vote in favor of the Feinstein-Lee amendment
and against the mistaken idea that the government may detain American
persons indefinitely without charge and without trial.
Thank you, Mr. President. I yield back the remainder of my time to
Senator Feinstein.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, the amendment before us is cosponsored
by the distinguished Senator who just spoke, Senator Lee, as well as
Senators Coons, Collins, Paul, Lautenberg, Gillibrand, Kirk, Tester,
Johnson, Sanders, Whitehouse, Heller, Baucus, DeMint, Webb, Klobuchar,
Bingaman, Rockefeller, Begich, and Boxer. An amendment similar to this
received 45 votes in the last session.
I wish to spend a moment on the genesis of this amendment because,
for me, it goes back to April 1942, the day a Western Defense Command
and Fourth Army Wartime Civil Control order went out in San Francisco
with instructions to all persons of Japanese ancestry, that: All
Japanese persons, both alien and nonalien, will be evacuated from the
above designated areas by 12 o'clock noon on Tuesday, April 7, 1942. No
Japanese person will be permitted to enter or leave the above described
area after 8 a.m. Thursday.
That was in the city of San Francisco.
What was created was an internment camp near the city which became a
staging area for the placement of Japanese Americans in detention camps
without charge or trial for the remainder of World War II.
This was Tanforan Racetrack, directly south of San Francisco. One
Sunday afternoon--I was a small child in 1942--my father took me down
to show it to me. This is what I saw. We see stalls made into bunk
houses. We see the center of the field made into barracks. We see the
little places where individuals were kept. We see Japanese-American
citizens who did nothing wrong who were being interned for years during
World War II.
It was shocking. Then it took until 1971 for a bill to be passed and
then signed by President Nixon reversing the policy. That bill was
called the Non-Detention Act of 1971, and it repealed a 1950 statute
that explicitly allowed detention of U.S. citizens. That 1971 bill
said--and I quote:
No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.
Since then and after 9/11, various cases were litigated and went as
far up as the Supreme Court. One of them in 2004 was Hamdi v. Rumsfeld,
and it addressed a very narrow issue involving a citizen captured on
the battlefield of Afghanistan. Then a second case, Padilla v.
Rumsfeld, in the Second Circuit Court of Appeals involved an American
citizen captured in the U.S.
So the question is whether the Non-Detention Act of 1971 prevents
U.S. citizens captured in the U.S. like Padilla from being detained or
whether the AUMF passed after 9/11 authorizes such law of war detention
in the U.S.
What we are trying to do with this simple amendment is what is called
a clear statement rule, to say once and for all:
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.
I know this is a sensitive subject, but I believe we stand on the
values of our country, and one of the values of our country is justice
for all. And we have a Constitution that has 7 articles and 27
amendments that give us fundamental protections.
This amendment, which builds on the continuing application of the
principles behind the Non-Detention Act of 1971, would provide very
clearly that no military authorization allows the indefinite detention
of U.S. citizens or green card holders who are apprehended inside the
United States. Some may ask why just include citizens and green card
holders. Let me be clear, if I could further and add ``all persons''
and get as many votes, I would. I do not think it would, and we have
looked into how to do this for a year now. So we have limited it to
what we believed could get the maximum number of votes in this body.
Here is the point of this amendment: What if something happens and
you are of the wrong race in the wrong place at the wrong time, and you
are picked up and held without trial or charge in detention ad
infinitum? We want to clarify so this cannot happen; so that the law
does not permit an American citizen or a legal permanent resident to be
picked up and held without end, without charge or trial.
I want to say that the FBI and other law enforcement agencies have
proven time and time again that they are up to the challenge of
detecting, stopping, arresting, and convicting terrorists found on U.S.
soil.
I have a document that was prepared by the Intelligence Committee
staff lists 98 terrorists who have been arrested and are on their way
to conviction and will do time, many of them life sentences, in Federal
prisons, and these are just those arrested in the last 3 or 4 years.
Since January of 2009, there are 98 who have been successfully
arrested. I think it is important to understand that suspected
terrorists who may be in the United States illegally can be detained
within the criminal justice system under four options that exist today.
They can be charged with a Federal or State crime and held. They can be
held for violating immigration laws. They can be held as material
witnesses as part of a Federal grand jury proceedings. They can be held
under section 412 of the PATRIOT Act for up to 12 months.
This amendment 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 and
they are.
It is about the innocent American, again in the wrong place, at the
wrong time, who gets picked up, like these innocent Japanese Americans
shown in this picture who just happened to live in a certain part of
the United States, in my hometown, San Francisco. But this was what
happened. People were picked up and held for the duration of the war--
just because of their race.
Finally, I want to quote Justice Sandra Day O'Connor, who wrote for
the plurality in the Hamdi decision in 2004:
As critical as the Government's interest 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.
So it is my hope we can clarify U.S. law to state unequivocally that
the government cannot indefinitely detain American citizens or legal
residents captured inside this country without trial or charge.
We live with the stain of how we treated some of our own people
during World War II. It should not be repeated.
I thank the Acting President pro tempore, and I would like to yield
to the distinguished Senator Paul, if I may.
The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
Mr. PAUL. Mr. President, I rise today in support of the Feinstein-Lee
amendment to prevent the indefinite detention of American citizens
without a trial by jury. In the year 1215, the English barons gathered
on the plain at Runnymede. They gathered to protest against King John.
They gathered for their rights as free men. And they gathered for the
right to trial by jury.
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We have had it enshrined in both English law and American law for 800
years. It seems a shame to scrap it now.
People say: But these terrorists are horrible people. Yes, they are
horrible people. But every day and every night in our country horrible
people are accused of crimes, and they are taken to court. They have an
attorney on their side. They are given a trial. People we despise,
people who murder and rape, are given trials by juries. We can try and
we can prosecute terrorists.
People say: But they are terrorists. Well, the thing is, you are an
American citizen and you are accused of terrorism. Who is going to
determine who is a terrorist and who is not a terrorist? They do not
walk around with a badge. They do not walk around with a card that
says: I am from al-Qaida. They will be accused of a crime, and there
will be facts. Someone must judge the facts. That is what a jury does.
To give up on this because we are afraid of terrorists is to give in
to the terrorists. If we give up our rights, if we relinquish our
rights, haven't the terrorists then won?
Jefferson said the right to trial by jury was the ``anchor,'' it was
the anchor by which we protect ``the principles of the Constitution.''
Senator La Follette, a Senator from Wisconsin, said if we give up
these rights, if we are unable to protect these rights, that ultimately
the Bill of Rights loses its value.
He said:
Let no man think that we can deny civil liberty to others
and retain it for ourselves. When zealot agents of the
governments 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. . . .
I would ask today of my colleagues that we have a chance to replace
fear with confidence--confidence that no terrorist will ever conquer us
if we remain steadfast to our principles--the principles of our
Founders. We have nothing to fear except our own unwillingness to
protect our rights. If we relinquish our right to trial by jury, we
will have given up so much. Do not let those who would instill fear let
you give up the most basic of rights--a right that prevents the
oppression of government and the evolution or devolution into
despotism.
So I hope my colleagues will today vote to uphold an 800-year-old
tradition, a tradition that is enshrined in the body of our
Constitution, a tradition that is enshrined in our Bill of Rights, and
a tradition that is in every constitution of all 50 States. Are we to
give that up because we are fearful? We can and have convicted
terrorists. We are not talking about terrorists from overseas. We are
not talking about a battlefield somewhere else. We are talking about
American citizens accused in our country.
Why should you be wary? The government has descriptions of who might
be a terrorist. If you have 7 days' of food in your basement, you might
be a terrorist. If you have weatherized ammunition, you might be a
terrorist. This is what your government describes as things you should
report. Know your neighbor to report your neighbor. If you have
weatherized ammunition, multiple guns, food in your basement, if you
like to pay by cash--if these are the characteristics for which you
might be accused of terrorism, would you not, at the very least, still
want to retain your right as an American citizen to a right to a trial
by a jury of your peers?
I ask that we step up today and support an ancient tradition. And I
worry about a country that would let a tradition like the right to
trial by jury go so easily.
Thank you, Mr. President.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I appreciate the opportunity. This is a
good debate. It is a fascinating discussion. I guess the way I look at
this issue--and we will talk with Senator Levin in a bit--I have been a
military lawyer for about 30 years, and the first thing you do in JAG
school is have a discussion about the difference between the law of war
and criminal law. Every military lawyer is taught from the very
beginning of their career that law of war detention is designed to
neutralize the enemy and to gather intelligence about the enemy.
There is a reason that when we capture somebody in a war we do not
give them a trial by jury, and we do not give them a lawyer. We have
3,000 people in American military custody in Afghanistan who were
captured on the battlefield, and they are held under the law of war
because we do not want to let them go back to killing us. And they are
not given a lawyer because we are not trying to solve a crime; we are
trying to win a war.
Here is the question to my good friend from California: I do not want
anyone to believe that under the law of war construct we have created
over the last 7 or 8 years that you can be put in jail because you look
like a Muslim, that you sound like a Muslim, that you have got a name
Mohammad. What happened to Japanese-American citizens is they were put
in military custody because we were all afraid and they looked like the
enemy. That was not a high point in America.
What are we talking about here? We are talking about detaining people
under the law of war who are suspected of joining al-Qaida or the
Taliban and engaging in a belligerent act against the United States. I
want to make the record clear that some of my colleagues on the
Republican side have been trying to deny law of war detention to the
Obama administration, and they have openly said this: If you allow this
to happen, President Obama is going to put you in jail because of
political dissent.
There are people on my side who are afraid of law of war detention
being in Barack Obama's hands because they think,--they hate him so
much they think he is going to use a provision to protect us against an
al-Qaida attack to put them in jail because they disagree with his
agenda.
It gets worse. I want you to know this. There has been a statement in
our conference that habeas corpus review by an independent judiciary
where the intelligence community, the military, would have to prove in
court by a preponderance of the evidence that the person in question
has, in fact, engaged in hostilities against the United States by
helping the Taliban or al-Qaida--that is the requirement of the
government--they have to prove that to the judge, that is not really a
check on government power because the judge could be an Obama
appointee.
As much as I disagree with President Obama, as much as I think he has
been a divisive President, in many ways has failed to lead, I want to
disassociate myself from the concept that you cannot give this
Commander in Chief the powers that Commanders in Chief have enjoyed in
other wars because we hate him so much.
To my friends who get on the Internet and talk radio and stoke this
paranoia, we are afraid enough for good reason. This is a dangerous
world. We are about to walk off the fiscal cliff. We have people out
there trying to undermine our way of life. There is a lot to be afraid
of: Al-Qaida coming back to our shores, recruiting American citizens to
help their endeavors. I hate to say it, in every war we have ever been
in, there have been occasions when Americans joined the enemy.
In World War II that happened. You had German saboteurs land on Long
Island, aided and abetted by American citizens sympathetic to the
Nazis. All of those American citizens in In Re: Quirin were held in
military custody and tried by the military because we have long
understood that when you join the enemy, that is not a crime but an act
of war.
We have very bad people who get a right to a jury trial. I will be
the first one to say that when you go to court, no matter if you are
the worst terrorist in the world, you will get a jury trial, you will
get a lawyer, and you will have your due process rights. But the
difference I am trying to inform the body of when you are fighting a
war is the goal is not to prosecute people, the goal is to win. And how
do you win a war? You kill them; you capture them; you interrogate them
to find out what they are up to next. So I am here to say to my
colleagues that the al-Qaida-Taliban efforts to do harm to our Nation
are alive and growing. The narrative that al-Qaida has been decimated
is a false narrative. What happened in Libya, unfortunately, is going
to happen again.
[[Page S7184]]
I know my good friend from California, who is the chairman of the
Intelligence Committee, knows there are active efforts in our own
backyard--and Joe Lieberman can tell you, too--to recruit American
citizens to attack us--not to commit a crime, to join the enemy.
All I am suggesting is that Barack Obama and every Commander in Chief
in the future needs to have the tools available to protect us against
an enemy. And the basic question is: Is fighting al-Qaida fighting a
crime or fighting a war? I believe with all of my heart and soul that
they do not want our property, they do not want our cars, they do not
want our bank accounts, they want to destroy us. They hate what we
stand for. Just as in World War II, when you decided to help the Nazis,
you were held in military custody because you did something other than
commit a crime.
The goal here is if you capture an American citizen who has sided
with the enemy that we preserve the ability of our military
intelligence community to find out what they know about future attacks
and present attacks. The goal of a criminal prosecution is to find
justice under a criminal statute. The goal in time of war is to win.
I do not believe in torturing people to get good information, but I
do believe in interrogating them for military purposes if they have
sided with the enemy.
This is a great debate. But the one thing I do not want to associate
myself with is as much as I may disagree with this President's agenda,
there are people on my side of the aisle who are stirring up their
fellow Americans, making them afraid that Barack Obama could use
legitimate powers in a time of war to gather intelligence against
people who sided with the enemy to come after them because they look
different or they may have a different political belief. I want to
disassociate myself with those on my side of the aisle who say that
habeas corpus, an independent judiciary, is not an adequate check
because Barack Obama may have appointed the judge. That undermines our
judiciary. That creates paranoia. That creates a fundamental distrust
of what I think is something we should be all proud of: America.
This war will last probably longer than most of us. It is an
ideological struggle. There is no capital to conquer, like Berlin and
Japan. There is no air force to shoot down. There is no navy to sink.
It is about an ideology that must be contained and fought, an ideology,
unfortunately, that will be attractive to some Americans as it was in
other wars.
Unfortunately, as I speak today, the enemy is trying to come back to
our shores and use some American citizens to further their cause. To an
American citizen: Do not join al-Qaida or the Taliban. Do not turn on
your country. Do not side with their view of humanity. If you do, you
have not committed a crime, you have engaged in an act of war against
the rest of us and we have a right to win this war. We have a right to
hold you under the law of armed conflict as we have held others in the
past, to find out why you joined, what you know, and what they are up
to next. There is no American citizen in law of war custody. This
President has not rounded up one person and put them in jail using the
statute that exists today because they disagreed with him. I do not
believe he will. All I am asking is that we have options available in
this war that have existed in every war America has fought. Because
here is my bottom-line belief, that as much as the Nazis represented a
threat to humanity, al-Qaida represents an equal threat to humanity.
And nobody in World War II would have entertained the idea that if you
sided with the Nazis and you helped the saboteurs blow up parts of
America, you should be considered anything other than an enemy who has
joined the other side.
So unlike criminal law, where you are trying to find justice for
victims, this is about winning a war and marginalizing the enemy. And
when the enemy is able to turn one of our own, the last thing in the
world we should do is deny ourselves the ability to interrogate that
person in a way to help us win the war and keep us safe. That has been
the law forever when it comes to war. That is the law today, that will
be the law tomorrow.
I look forward to talking to Senator Levin, who has been a 100-
percent voice of reason, to talk about authorization to use force and
the ability to detain.
I will end with this thought: If you deny the ability to gather
intelligence and detain, you do not want to put our troops in a
position where they have to kill everybody they find. We want to
capture the enemy when we can. Because when you capture the enemy, not
only do you hurt the enemy, you find out a lot about what they are up
to. Here is the question: If an American citizen is engaging in helping
al-Qaida and the Taliban in a terrorist activity on our shores, are
they the enemy? Yes, they are. We need to know about why they did what
they did and what they are going to do next.
With that, I will yield.
Mrs. FEINSTEIN. Mr. President, how much time remains on our side?
The ACTING PRESIDENT pro tempore. There is 9 minutes 15 seconds.
Mr. LEVIN. How much time is there left on our side?
The ACTING PRESIDENT pro tempore. There is 17 minutes 24 seconds.
Mrs. FEINSTEIN. I will wait until the very end and give the
distinguished chairman the opportunity.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. Mr. President, it would be my intent, if we need
additional time, unless there is something else that is needed at about
9:30 or so when this time runs out, to seek additional time for both--
for anyone who needs it, frankly. I do not know about both sides,
because this is a multifaceted debate that we are going to have here
tonight on this issue.
I would yield myself 10 minutes. I would ask to be notified when I
get to 10 minutes.
The Feinstein amendment provides that no authorization for the use of
military force may be construed to authorize the detention of U.S.
citizens or lawful resident aliens who are captured inside the United
States, unless--and this is a big ``unless''--an act of Congress
expressly authorizes such detention.
As I read the amendment, it says the military detention of U.S.
citizens may be authorized in accordance with the law of war as long as
this action is expressly authorized by Congress. Further, the
amendment's requirement for express authorization applies only to the
detention of U.S. citizens who are captured inside the United States.
So no such authorization would be required for the detention of a U.S.
citizen in the course of military operations overseas. I believe it is
appropriate that Congress focus on the issue of military detention at
the time they authorize the use of military force, as would be required
by the Feinstein amendment.
As the Supreme Court has stated: Detention is a fundamental and
accepted incident to armed conflict. Without such authority, our Armed
Forces could be put in the untenable position of being able to shoot to
kill but not to capture and detain enemy forces.
As to the ongoing conflict, I believe the 2001 authorization for the
use of military force authorized the detention of U.S. citizens when
appropriate in accordance with the laws of war.
I base this view on the fact that the Supreme Court has said so.
In the Hamdi case, the Supreme Court considered the relationship
between the AUMF and the nondetention act which prohibits the detention
of a U.S. citizen except where authorized by an act of Congress. The
Supreme Court held in Hamdi that this statute does not preclude the
detention of U.S. citizens on the battlefield in Afghanistan because
the 2000 authorization for the use of military force, quoting the
Supreme Court, ``is explicit congressional authorization for the
detention of individuals'' in such circumstances. The Court explained
that such detention is so fundamental and accepted as an incident to
war as to be an exercise of the ``necessary and appropriate force''
that Congress authorized the President to use in the AUMF. In other
words, the Supreme Court has already concluded that the authorization
to use necessary and appropriate force is an explicit authorization to
detain enemy combatants in accordance with the law of war, and that
meets the test of the Feinstein amendment.
Any other conclusion would lead to absurd results, under which we
would tie the hands of our Armed Forces even
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in the face of an actual invasion. For example, if a group of
terrorists were to approach one of our Navy bases in boats loaded with
bombs, our sailors protecting those ships at that base would be in the
untenable position of being able to shoot to kill, but not to capture
the enemy forces if Hamdi did not reach the conclusion it did.
Similarly, in the unthinkable event that we were to experience a 9/
11-type attack, our military would be in the untenable position of
having the authority to shoot down the hijacked aircraft but not to
force them to land and to capture the enemy hijacker. Of course, we
could not expect our military to inquire as to whether any of the enemy
force were American citizens before deciding on the level of force to
be applied.
As the Supreme Court explained in its Hamdi decision, ``the capture,
detention, and trial of unlawful combatants, by 'universal agreement
and practice,' are 'important incidents of war''' and a ``fundamental
and accepted incident to war.''
What the Supreme Court said in Hamdi is explicit in the AUMF, in the
authorization for use of military force, the core ``law of war''
authority for our military to capture and detain those who join enemy
forces at a time of war and plan or participate in attacks against us.
This core authority to use less than lethal force, rather than lethal
force, in appropriate circumstances must be available to our military
whenever and wherever it engages with the enemy.
Again, Senator Feinstein's amendment does not prohibit the military
detention of U.S. citizens who are captured or apprehended inside the
United States because a U.S. citizen who joins a foreign army and
attacks the United States should be subject to detention as an enemy
combatant if it does not prohibit military detention and if it is
expressly authorized by law. I read this as a statute authorizing the
use of military force itself or some other act of Congress.
This is a major difference between or from the amendment Senator
Feinstein offered last year, which included no exception for
congressional authorization. This new approach is appropriate because I
believe that Congress ought to address the issue of detention of U.S.
citizens when captured in the United States at the time that we
authorize the use of force.
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 U.S. citizens in that situation
which was on the battlefield in Afghanistan, but that it explicitly,
again in the words of the Hamdi Court, authorized the detention of U.S.
citizens in the case of an individual who was captured in Afghanistan
who was attacking U.S. forces.
I believe the same reasoning applies to persons who join foreign
armies and attack us militarily here in the United States when they
bring the war here to the United States and attack us here. If they
attack a Navy base and are captured by sailors defending their ships,
the same logic that Hamdi applied to an attack in Afghanistan against
our forces applies here. That is the same reason they used in that case
to find that there was an explicit authorization for the detention of
U.S. citizens in the Afghanistan circumstance; that it is an inherent
fundamental function of war, that you be able to capture and detain
people who are at war with you, applies when that act of war is carried
out here in the United States, such as in the attack on a Navy base.
I request 1 additional minute.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEVIN. The Feinstein amendment provides an appropriate signal to
Congress that in an authorizing context they should be aware of
detention authority issues. Therefore, I intend to vote for the
Feinstein amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from New Hampshire.
Ms. AYOTTE. Mr. President, may I ask how much time remains on our
side and on the other side?
The ACTING PRESIDENT pro tempore. There is 17 minutes remaining.
Ms. AYOTTE. There is 17 minutes remaining in opposition?
The ACTING PRESIDENT pro tempore. Yes.
Ms. AYOTTE. Mr. President, I rise to agree with my colleague Senator
Levin, the chairman of the Armed Services Committee, in his
interpretation of the Hamdi decision with regard to the review of the
current amendment pending before us. The Feinstein amendment includes
different language than the amendment that was brought forward and
defeated in this body last year. The language says in 2(b)(1) that 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.
I do view, as does my colleague from Michigan, Senator Levin, the
Hamdi decision that was decided before our U.S. Supreme Court as
rendering an opinion that the current authorization for the use of
military force that is in effect for our country gives explicit
congressional authority for the detention of individuals such as in the
case of Hamdi. He was an American citizen engaged in the battle against
our country and would fall underneath the authorization for military
force. In the Hamdi decision, the Court said that the AUMF, which has
currently been approved by Congress, having the full force and effect
of law, gives explicit congressional authorization for such detention.
I too believe, as Senator Levin has said, under that authorization,
the Hamdi decision would be interpreted similarly if an individual who
was a covered individual--a member who was covered by the authorization
for military force but was nevertheless a United States citizen--was
caught here committing an act of terrorism in this country. Our Supreme
Court has already interpreted that in Hamdi in such a way. I wanted to
add my support for his interpretation of the current Feinstein language
in that way.
I wish also to say in response to the arguments of some of my
colleagues that if the argument that is being made is this, that if you
are an American citizen who is captured in this country committing an
act of terrorism against our country and collaborating with al-Qaida,
committing belligerent acts in this country, then you should be held
under the law of war. If you are not, then we will have to give you
Miranda rights. We will have to tell you you have the right to remain
silent.
Let me remind you, in those situations, can you imagine if an
American citizen had been one of the collaborators of 9/11, would we
want to tell a member of someone who had committed an act like 9/11
against us--an act of war against this country--the first thing you
hear is you have the right to be silent? Our goal is we have to be
there to gather intelligence to see if there is another attack coming.
Is it coming to the Pentagon, is it coming to the White House, is it
coming to that second tower? Then we can protect American lives.
That is the difference between war and common crime. That is an
important distinction that has been recognized long before--with all
respect to my colleague from Kentucky--in World War II in In Re:
Quirin. Our U.S. Supreme Court in World War II recognized this
authority, the difference between the law of war. In that case an
American citizen who collaborated with the Nazis was held under the law
of war because our country was at war.
I would also wish to point out that this would only cover under the
current law authorized by this Congress. It would not apply to someone
who is holding ammunition or someone who is paying with cash. It only
applies to a person who has planned, authorized, committed, or aided
the terrorist attack that occurred on 9/11 or harbored those
responsible for the attacks, or a person who has a part or
substantially supported al-Qaida, the Taliban, or associated forces
that are engaged in hostilities against the United States or its
coalition partner, including any person who has committed a belligerent
act or directly supported such hostilities in aid of enemy forces
against our country.
That is very different than some of the examples that were cited
here. It is
[[Page S7186]]
called being a member of al-Qaida, being involved in September 11,
being a member of the Taliban and committing belligerent acts against
this country. That is terrorism.
Let me point out what I think is the most absurd distinction of all.
This is Anwar al-Awlaki. He is someone who is a U.S. citizen. He is
someone who was an influential leader in al-Qaida in the Arabian
Peninsula. He advocated for violent jihad. He was involved in a dozen
terror investigations. He was alleged to be involved in killing
Americans and collaborating to kill our allies. On September 30, 2011,
it was reported that al-Awlaki was killed by the CIA in a drone strike
in Yemen. Yet it is being interpreted, as we have heard by some of my
colleagues represented here, if the Feinstein amendment were
interpreted the way they have interpreted, if al-Awlaki made it to
America to commit these terrorist acts, he gets his Miranda rights. He
gets all his rights here. But yet if he is in Yemen to do these acts,
to try to kill Americans and our allies, then we can use a drone attack
to him. But if he makes it to America--which, by the way, the
terrorists want to make it to America; 9/11 is Exhibit A of that--why
do we want to be in a position to read them their Miranda rights, tell
them you have the right to remain silent? Our priority there has to be
protecting American lives. That is the distinction between the law of
war and a common criminal in this country.
By the way, there are protections under the law. It is the right of
habeas corpus where you do have a right to challenge your detention
before the Federal court through appeals with counsel. That is
certainly a protection that we have respected in this country for a
long time.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I would like to inform the body that I
think Senator Levin's understanding and reasoning is incredibly sound.
We have actually been talking about this for a couple of days. And in
light of the Hamdi decision and just plain old common sense, I will
support the Feinstein amendment.
I will be the first to say that if we are attacked by the Iranians
tomorrow or some other group, we have an authorization to use force.
Senator Levin and I will be the first to say in that authorization that
it will provide that if an American citizen joins the Iranians in a war
against America, they can be detained under the law of war.
Now, you can vote however you like. I know how I will vote. But this
has already gone up to the Supreme Court. And if I can build on what
Senator Levin said as to the logic of the Court and I think the logic
of our position, let's get us back to the United States. I don't think
anybody in their right mind would say the United States is not part of
the battlefield in the war on terror. I would suggest that of all the
places the enemy wants to hit us, they want to hit us here at home the
most. Their goal is to kill us here. They will kill us in Libya, they
will kill us in Afghanistan, they will attack our consulates, they will
kill our soldiers, they will blow up our embassies, they will hit us
all over the world, but don't be misled--they want to hit us here.
Remember 9/11? I do. I am sure you all do.
You know what. The only reason we haven't had another 9/11 is we have
been fighting these bastards over there, where we have been getting
good intelligence. It took a couple of years before any of the people
held at Guantanamo Bay told us what was going on, but we found out
about bin Laden--and not because we tortured people but because we put
the intelligence puzzle together over time by holding people under the
law of war and gathering good intelligence. That is how we got bin
Laden. So bin Laden is dead, but the war is not over. I wish it were.
Now, the homeland. If there is a planned attack on a Navy vessel or a
military installation, I think the point Senator Levin was making is
that we have already authorized the use of force to protect the country
against the Taliban and al-Qaida; is that right?
Mr. LEVIN. That is my opinion, and that is the fundamental core
ruling in the Hamdi case. Now, we have to be accurate. Hamdi applied
circumstances to citizens that were captured in Afghanistan, but the
reason they use led them to conclude there was an explicit--explicit--
authorization to detain those citizens even though they are American
citizens. Their argument was that capture and detention was inherent,
in their words--so fundamental--to capture and detain as such is an
accepted incident to war as to be an exercise of the necessary and
appropriate force which Congress authorized the President to use.
So in my analogy, if a boatload full of al-Qaida, including an
American citizen, comes to a Navy base and attacks that base and is
captured by those sailors, that is surely an incident of war, and I
believe the capture and detention of those al-Qaida terrorists would be
the exercise of necessary and appropriate force which we authorized the
President to use in the authorization for military force.
Mr. GRAHAM. I want to build on that just to make sure we understand
about a potential attack on a Navy base here at home. No one is
suggesting the military could not use force against an al-Qaida attack
here at home. The Hamdi case was an American citizen captured in
Afghanistan. I hope we are not trying to create a picture that somehow
America is a place where our own military cannot fire a shot in defense
of their ships or our country.
Let's say we have some ships up there in Virginia and we have a
boatload of al-Qaida types trying to ram the ship. Does the Senator
agree with me that our military can use force to defend us here at home
against al-Qaida?
Mr. LEVIN. That is correct.
Mr. GRAHAM. So if our military is authorized to use force, they do
not have to call the FBI or the Virginia State Police to shoot. They
can shoot against an enemy themselves coming at them in America.
Mr. LEVIN. Coming into America and attacking us on a Navy base or----
Mr. GRAHAM. Right. Because we are not fighting a crime. We don't have
to disarm our military and call the local cops and say: Would you
please shoot these people before they get here? No. Our guys are going
to shoot you. If you are an American citizen asked to get in a boat and
asked to attack a military ship or installation in the United States,
we are going to shoot you, and if we wound you, we are going to capture
you. And here is what we are going to do to you as an incident of using
force. The Supreme Court has said that when you authorize the use of
force, it makes no sense to give that authorization if you don't have
the power to detain because the worst thing you can do to the American
military is to make them kill everybody and capture no one or let the
other guys go. So kill-them-all is not good policy, and it is a bad
spot to put your military in. And the option shouldn't be to kill them
all or let them all go; the option should be to kill where you have to
and, if you can, capture. Does the Senator agree with that?
Mr. LEVIN. I do.
Mr. GRAHAM. And our military can fire the shots because of the use of
force to defend the homeland and to defend themselves here at home. And
the Supreme Court says that once you authorize the ability to use
force, it just follows, as night follows day, that detention is part of
the ability to use force because, ladies and gentlemen, if it is not,
you have turned our military into murderers because you are not
supposed to shoot somebody and leave them wounded in the water, and you
shouldn't watch them swim away. You capture them and interrogate them
under the law of war. Isn't that what Hamdi is about and the point they
are trying to make?
Mr. LEVIN. It is. As part of that point, it cites the Quirin case,
which says:
Citizenship in the United States of an enemy belligerent
does not relieve him from the consequences of a belligerency
which is unlawful because in violation of the law of war.
And here are the key words:
Citizens who associate themselves with the military arm of
an enemy government, and with its aid, guidance and direction
enter this country bent on hostile acts, are enemy
belligerents within the meaning of the Hague Convention.
Mr. GRAHAM. I will read another quote from Hamdi.
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant.
[[Page S7187]]
Hamdi's detention could last for the rest of his life because the law
of war detention can last for the duration of the relevant conflict.
Here is what we are trying to do. We are trying to create a system
consistent with the Hamdi decision, and quite frankly, ladies and
gentlemen, what I am trying to avoid is the criminal paradigm because I
know the difference between criminal law and law of war. Under the law
of war, you can detain somebody for interrogation to find out what the
enemy is up to if you believe that person to be part of the enemy.
And let me tell my friends, I do not want to take our criminal
justice system and bastardize it. During the Bush years when we had the
military commission rollout, they had a provision that in a military
commission trial, the military jury could be given classified
information but not share it with the defendant. I said: No. If a trial
means anything, it means the right to confront those witnesses against
you. I jealously guard that. The worst al-Qaida member in the world,
when they go on trial in military commissions, will have a lawyer, a
right to appeal to our Supreme Court, and will be able to confront
every witness against them. An American citizen who joins al-Qaida or
the Taliban will be tried in Federal court because we took military
commissions off the table. That is the trial.
Here is the main point: If you are allowing our military to use force
to protect themselves, as Hamdi says, it naturally follows that with
the use of force comes the lawful detention. And that is why I will be
voting for Feinstein. I think that is where most Americans are. If
there is any confusion, we can talk about this in conference.
But, Senator Levin, I want to thank you for--since 2006--working with
me and against me. You know, our dispute about what would be an active
substitute for habeas went to the Supreme Court, and you won 5 to 4.
Damn those Justices, but that is the way it goes. And you know what.
There were some Republicans and Democrats who disagreed with me and you
both. But I respect an independent judiciary, and I know Justice
Roberts kind of got some people mad at him because of the ObamaCare
decision, but that is the way it goes. That is the way these old judges
are. I just really appreciate an independent judiciary.
I just want to say that after that decision in 2006 or 2007, how much
of a pleasure it has been to work with you and others to try to find a
way to achieve a balance in a war that is hard to understand. There is
no capital to conquer, no airplanes to shoot down in terms of their jet
fighters, there is no navy to sink, but they use boats to attack us and
they use private planes to kill us. At the end of the day, we are at
war. The outcome does matter, and I want to win this war. I know
everybody in this body wants to win this war. But I want to live within
our values.
So I will work with Senator Levin and Senator McCain and say that
even though we are fighting the worst people on the planet, count me
out when it comes to waterboarding. I remember when people on my side
would say--and I understand them very well--why do you care about what
we do to these people? They will cut our heads off.
Because we are Americans. It is not necessary to go down that road to
win the war. And quite frankly, ladies and gentlemen, the opposite is
true. You can't win this war if you don't realize you are in a war. We
are not fighting common crime, we are fighting a vicious enemy. And we
can do it within our values. We can do it within due process consistent
with the law of war and, when we get in that criminal arena, consistent
with criminal law.
As much as I disagree with this President, I will not deny him the
ability that every Commander in Chief has had for decades as an option,
if he chooses to use it. And if you want to go down the criminal road,
we can, but we need the option. As much as I dislike President Obama, I
am not going to use as a reason to change the law of war that Barack
Obama may put some people in jail who disagree with him, and I am not
going to buy into some of the rhetoric coming out of our side that a
habeas corpus independent judiciary view means nothing if Obama
appointed the judge. We are better than that.
I stand ready to vote for Feinstein, I stand ready to work with my
colleagues to continue to find a way to fight and win a war within our
values, the outcome of which will matter not only to us but those who
follow.
God bless every person on the front line who is risking their life at
home and abroad. And here is what you have as a promise between Senator
Levin and myself and many others: We are going to give you the tools to
keep us safe and to keep your comrades safe. We are not going to do
things in this war that made no sense in other wars. You need our help,
you need our prayers, and you need the tools to fight and win this war,
and we will give you those tools.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
Mr. PAUL. Mr. President, even though my colleagues sometimes appear
to have disdain for the trial by jury, it now appears they are
supporting the right to trial by jury, and so I congratulate them on
their conversion. However, I think they are still a little confused on
Hamdi.
Hamdi had to do with a citizen fighting overseas and nothing to do
with a citizen here. I have great confidence that the Supreme Court,
given a ruling on the right to trial by jury, will affirm the right to
trial by jury whether they were appointed by Ronald Reagan or President
Obama. So we will have that fight on another day.
I will say, though, that our oath of office says we will defend the
Constitution against enemies foreign and domestic.
I met with cadets this week and they asked me, What is the freedom we
fight for? The freedom we fight for is the Bill of Rights, is the
Constitution. If we have careless disregard for the Constitution, what
are we fighting for?
I will tell you, since I know the record of this debate will be
widely read, I want to make formal objection to the crazy bastard
standard. I don't think if we are going to have a crazy bastard
standard that we shouldn't have a right to trial by jury. Because if we
are going to lock up all the crazy bastards, for goodness sake, would
you not want, if you are a crazy bastard, to have a right to trial by
jury?
I think this is a very serious debate and should not be made
frivolous. This is an ancient right that we have defended for 800
years. To say that habeas is due process is absurd. It is the beginning
of due process. If you don't have a right to trial by jury, you do not
have due process. You do not have a constitution. What are you fighting
against and for if you throw the Constitution out, if you throw the
sixth amendment out? It is in the body of our Constitution. It is in
the Bill of Rights. It is in every Constitution in the United States.
Trial by jury has been a longstanding and ancient and noble right.
Let's not scrap it now.
I will accept victory today. I hope we will win victory and reaffirm
the right to trial by jury. But let's don't play any games with any
aspect and believe that any Supreme Court in the United States, whether
appointed by Republican or Democrat, is going to say that an American
citizen does not have a right to trial by jury.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. If Mr. President could tell me what the respective
times for either side in this amendment are?
The ACTING PRESIDENT pro tempore. The opposition time has expired.
Proponents have 6 minutes remaining.
Mr. LEVIN. If the Senator would yield.
Mrs. FEINSTEIN. I will.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. We are significantly over our time, I believe. We would be
happy to accommodate Senator Feinstein or others.
Mrs. FEINSTEIN. I just wanted to thank everybody. I think we had a
good debate. I think we ended in a good place. I am very hopeful that
the body will pass this now by a large majority. So I hope we are
successful tonight in achieving something that hasn't been achieved for
decades.
I want to thank everybody, our cosponsors, the chairman of the
committee, and Senator Graham for the debate.
The ACTING PRESIDENT pro tempore. The Senator from Alabama.
Mr. SESSIONS. Mr. President, that was a good debate. Senator
Feinstein
[[Page S7188]]
is always gracious and alert and smart in her arguments.
I want to say one thing that is not in doubt. Some of my colleagues--
I think Senator Paul and others--have suggested that somehow the law of
the United States has been changed in recent years, and we need the
Feinstein amendment to fix it and restore the constitutional rights we
are all entitled to.
What I want to say, without any doubt and I think any fear of real
contradiction, is this amendment alters the history of the United
States, alters the long-term understanding of the rules of war, and
places American citizens in a position where they cannot be treated
effectively as an enemy of the state and detained, and actually be in a
position to be released to continue their war against the United
States. I think that is a bad policy.
I agree with Senators Levin, Ayotte, and others who share their view.
I am not quite able to understand--and I am not sure Senator Feinstein
does--that this therefore establishes through understandings of Hamdi
and the Supreme Court decision that therefore we can vote for it. I
don't think it is the right step. I don't think we should alter the
historical position of the United States that those who are at war with
the United States are not treated as criminals. Southerners who were
captured by Lincoln weren't released. When Washington dealt with the
Whiskey Rebellion, he sent out Alexander Hamilton. They weren't given
Miranda rights. They went out there to stop the rebellion. They were
citizens. That is the way I feel about it.
[...]
Mr. CORNYN. Mr. President, tonight the Senate will vote on an
amendment offered by the senior Senator from California that affects
the lawful authority of the U.S. military to detain enemy belligerents
during wartime. This issue is necessarily complicated and difficult
because the universe of detainees at issue includes U.S. citizens who
are captured on American soil while taking up arms against their fellow
citizens in the name of a foreign power or global terrorist
organization.
This is not an abstract issue. The U.S. homeland remains a target for
al Qaida terrorists, who hide among civilian populations and have
successfully recruited our fellow citizens to carry out acts of
terrorism.
Some of my colleagues contend that U.S. citizens forfeit their
citizenship when they commit terrorist acts or acts of war against
their fellow citizens but that they nevertheless should be tried and
treated as common criminals with all of the attendant constitutional
rights. Others believe that U.S. citizen-enemy combatants forfeit their
constitutional rights altogether and can be detained indefinitely by
the military without any judicial review.
I respectfully reject both of these positions. It is entirely
consistent with both the Constitution and laws of war for the U.S.
military to detain such individuals pursuant to a force authorization
or war resolution until the cessation of hostilities. To be sure, there
is historical precedent for this proposition. What is critical to
remember and too often seems to be omitted from this debate is that a
U.S. citizen or any other person lawfully inside our nation's borders--
who is detained by our military does not forfeit their rights to habeas
corpus review in a Federal court. In other words, they retain the
constitutional right to challenge their detention before an impartial
civilian judge.
The Supreme Court has noted that the ``writ of habeas corpus is the
fundamental instrument for safeguarding individual freedom against
arbitrary and lawless state action.'' And, in fact, a citizen's right
to habeas corpus extends all of the way to review by the U.S. Supreme
Court, the highest Court in the land.
In closing, what I find so confounding about this debate is the fact
that groups like the American Civil Liberties Union, ACLU, Human Rights
Watch, and Amnesty International have urged the Senate to reject the
Feinstein amendment. These groups have said that a vote against the
Feinstein amendment would send a clear message about our commitment to
constitutional rights. I respect the views and passion of these groups
but would urge a vote against the amendment for a different reason:
namely, I believe that we can keep faith with the Constitution and
maintain the global fight against al-Qaida.
Mr. DURBIN. Mr. President, I will support the Feinstein-Paul
amendment. This amendment would make it clear that Congress has not
authorized the indefinite detention of American citizens or lawful
permanent residents apprehended in the United States without charge or
trial. This is a common-sense amendment that should be completely
noncontroversial. It has long been understood that is unconstitutional
to indefinitely detain someone apprehended in the United States without
charge or trial. Indeed, the fifth amendment of the Constitution
provides simply that ``no person shall be . . . deprived of life,
liberty, or property without due process of law.''
Indefinite detention in the United States is not just
unconstitutional, it is unnecessary. Look at the track record. Since 9/
11, our counterterrorism professionals have prevented another terrorist
attack in the United States. And more than 400 terrorists have
successfully been prosecuted and convicted in federal court. Here are
just a few of the terrorists who have been convicted in federal court
and are serving long prison sentences: Umar Faruk Abulmutallab, the
Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 WTC bombing;
Omar Abdel Rahman, the so-called ``Blind Sheikh''; 20th 9/11 hijacker
Zacarias Moussaoui; and Richard Reid, the ``Shoebomber''.
Some of my colleagues have claimed that the Supreme Court's Hamdi
decision upheld the indefinite detention of U.S. citizens captured in
the United States, but it did no such thing. Hamdi was captured in
Afghanistan, not the United States. And Justice O'Connor, the author of
the opinion, was very careful to say that the Hamdi decision was
limited to, ``individuals who fought against the United States in
Afghanistan as part of the Taliban.''
Some of my colleagues also cited the case of Jose Padilla, claiming
that it is a precedent for the indefinite detention of U.S. citizens
captured in the United States. But look at what happened in the Padilla
case. Padilla is a U.S. citizen who was placed in military custody in
the United States. The 4th Circuit Court of Appeals, one of the most
conservative courts in the country, upheld Padilla's military
detention. But then, before the Supreme Court had the chance to review
the 4th Circuit's decision, the Bush administration transferred Padilla
out of military custody and prosecuted him in criminal court. To this
day, the Supreme Court has never ruled on the question of whether it is
constitutional to indefinitely detain a U.S. citizen captured in the
United States.
A number of prominent civil liberties and human rights organizations
have expressed their concern that because the Feinstein-Paul amendment
only prohibits indefinite detention of U.S. citizens and lawful
permanent residents, it implicitly authorizes indefinite detention of
others apprehended in the United States. I am very sympathetic to this
concern. As Senator Feinstein and Senator Paul have both said on the
floor of the Senate, they oppose the indefinite detention of anyone
apprehended in the United States, including non-U.S. citizens and non-
lawful permanent residents. I agree.
Senator Feinstein and Senator Paul included language in this
amendment to make it clear that we are not implicitly authorizing the
indefinite detention of individuals who are not U.S. citizens or legal
permanent residents. On page 2, line 14, the amendment says
[[Page S7193]]
that the prohibition on indefinite detention of U.S. citizens and legal
permanent residents ``shall not be construed to authorize the detention
of . . . any other person who is apprehended in the United States.'' So
in adopting this amendment, the Senate is not implicitly authorizing
the indefinite detention of anyone.
To the contrary, the language I have just quoted makes it clear that
this amendment does not change existing detention authority of non-U.S.
citizens and non-lawful permanent residents in any way. What does that
mean? It means that the Supreme Court will decide whether non-U.S.
citizens and non-lawful permanent residents can be detained
indefinitely without trial, not the United States Senate.
I want to thank Senator Feinstein and Senator Paul for their
leadership on this issue and am proud to support their amendment.
Mrs. FEINSTEIN. Mr. President, in 1971, 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.
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 U.S. citizens argue that the
Authorization for Use of Military Force, 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.
We heard this argument again tonight from Senators Levin and Graham.
They 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.
But let me discuss the facts of Hamdi 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 detain even
U.S. citizens who are arrested domestically.
However, the Supreme Court's opinion in that case was a muddled
decision by a four-vote plurality that recognized the power of the
government to detain U.S. citizens captured in such circumstances 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 legal ambiguity, principally 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 attacks.
In Padilla v. Rumsfeld the Second Circuit Court of Appeals held that
the 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 ``is not such an authorization, and no exception to
[the Non-Detention Act] otherwise exists.''
I think this history is particularly important in light of tonight's
debate.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, we have one more vote to start in just a few
minutes. Senator Levin wants to say something about the schedule for
tomorrow.
Senator Levin.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. We are going to be making a unanimous consent request, and
would like to do it right now, that tomorrow morning there be debate
and votes on the following five amendments: Senator Sessions on
bilateral discussions with Afghanistan, Sessions amendment No. 3009;
Cardin amendment No. 3025 on civilian personnel; Menendez amendment No.
3232 on Iran sanctions; Bill Nelson amendment No. 3073 involving widows
and orphans; and Coburn amendment No. 3254 involving second amendment
rights for veterans.
My request is that we have--I will make a unanimous consent request
now that tomorrow morning, at whatever time is allotted for morning
business by the leaders----
Mr. REID. There will be no morning business.
Mr. LEVIN. There will be no morning business--that we then proceed.
Now we don't have time agreements yet on these five. That is going to
take a few minutes. My unanimous consent request is that immediately
after prayer tomorrow we move to these five amendments. We will
allocate as little time as we can tonight after this unanimous consent
agreement is agreed to, if it is.
Mr. SCHUMER. Reserving the right to object, would this allow a vote,
an up-or-down vote on the Coburn amendment? Would this allow an up-or-
down vote on the Coburn amendment?
Mr. LEVIN. This will.
Mr. SCHUMER. I object.
The PRESIDING OFFICER. The objection is heard.
Vote On Amendment No. 3018
The PRESIDING OFFICER. Under the previous order, the question is on
agreeing to amendment No. 3018, offered by the Senator from California,
Mrs. Feinstein.
Mr. REID. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) and the Senator from Oregon (Mr. Wyden) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Nevada (Mr. Heller) and the Senator from Illinois (Mr. Kirk).
Further, if present and voting, the Senator from Nevada (Mr. Heller)
would have voted ``yea.''
The PRESIDING OFFICER (Mr. Pryor). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 67, nays 29, as follows:
[Rollcall Vote No. 213 Leg.]
YEAS--67
Akaka
Alexander
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Casey
Coburn
Collins
Conrad
Coons
Corker
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Hagan
Harkin
Hoeven
Inhofe
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
McCain
McCaskill
Menendez
Merkley
Mikulski
Moran
Murkowski
Murray
Nelson (FL)
Paul
Reed
Reid
Risch
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
NAYS--29
Ayotte
Brown (MA)
Burr
Chambliss
Coats
Cochran
Cornyn
Grassley
Hatch
Hutchison
Isakson
Johanns
Johnson (WI)
Kyl
Lieberman
Lugar
Manchin
McConnell
Nelson (NE)
Portman
Pryor
Roberts
Rubio
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NOT VOTING--4
Heller
Kirk
Rockefeller
Wyden
The amendment (No. 3018) was agreed to.
[...]
