[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)]
[Senate]
[Pages S8325-S8336]
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2013--CONFERENCE
REPORT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will now proceed to the consideration of the conference report
to accompany H.R. 4310, which the clerk will report.
[...]
Mr. LEVIN. Mr. President, on behalf of the Senate Armed Services
Committee, I am pleased to bring to the Senate, along with Senator
McCain, the conference report on H.R. 4310, the National Defense
Authorization Act for Fiscal Year 2013. This conference report, which
was signed by all 26 Senate conferees, all the members of the Senate
Armed Services Committee, contains many provisions that are of critical
importance to our troops. This will be the 51st consecutive year in
which a national defense authorization act will be enacted into law.
[...]
The conference report does not include the Senate language regarding
military detention inside the United States. The House conferees would
simply not accept this provision. Instead, we included a provision that
says and states the following:
Nothing in the Authorization for Use of Military Force,
(Public Law 107-40; 50 U.S.C. 1541 note) or the National
Defense Authorization Act for Fiscal Year 2012 (Public Law
112-81) shall be construed to deny the availability of the
writ of habeas corpus or to deny any Constitutional rights in
a court ordained or established by or under Article III of
the Constitution to any person inside the United States who
would be entitled to the availability of such writ or such
rights in the absence of such laws.
The provision in the fiscal year 2012 act, which is referred to in
the language I just read--it is already law--that section in the 2012
act is section 1021. That section said the following:
Nothing in this section shall be construed to affect existing law or
authorities relating to the detention of
[[Page S8326]]
United States citizens, lawful resident aliens of the United States, or
any other persons who are captured or arrested inside the United
States. The language in this conference report reflects my view that
Congress did not restrict or deny anyone's Constitutional rights in
either the 2001 Authorization for Use of Military Force or the Fiscal
Year 2012 National Defense Authorization Act. The Statement of Managers
accompanying this conference report points out that ``constitutional
rights may not be restricted or denied by statute.''
[...]
The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
Mr. PAUL. Mr. President, I rise in opposition to this bill because I
believe it contains language that would allow American citizens to be
detained without trial. The other side has argued that is not true,
that they will be eligible for their constitutional rights if they get
into an article III court or a constitutional court. But here is the
rub: They have to be eligible. Who decides whether someone is eligible
for the court? It is an arbitrary decision, and this is what this
debate has been over. Don't let the wool be pulled over your eyes that
everyone has protection and they will get a trial by jury if accused of
a crime.
We had protection in this bill. We passed an amendment that
specifically said: If you are an American citizen or here legally in
the country, you will get a trial by jury. It was explicitly stated and
it has been removed in the conference committee. It has been removed
because they want the ability to hold American citizens without trial
in our country. This is so fundamentally wrong and goes against
everything we stand for as a country that it cannot go unnoticed and
should be pointed out.
Proponents of indefinite detention without trial say that an
accusation alone is sufficient, that these crimes are so heinous that
trials are unnecessary. They will show us pictures of foreigners in
foreign dress from foreign lands and say that is what this debate is
about. It is untrue. This debate is about American citizens accused of
crimes in the United States.
Make no mistake that the faces of terrorism include awful people who
should be punished to the full extent of the law. The same portrait of
evil could be drawn of domestic terrorists, domestic terror, and
domestic violence. One could parade pictures of Charles Manson, Timothy
McVeigh--the Oklahoma bomber--Jeffrey Dahmer, and people would cry out
that they don't deserve a trial either. Most Americans understand at
some level that when someone is accused of a crime in our country, they
get a trial by a jury of their peers. No matter how heinous the crime
is or how awful they are, we give them a trial. This bill takes away
that right and says if someone thinks a person is dangerous, we will
hold that person without a trial. It is an abomination. It should not
stand. Most Americans understand that if someone is accused of a crime,
it does not make them guilty of a crime. They will still get their day
in court.
Some here may not care when they determine that they are going to
detain Ahmed or Yousef or Ibrahim. Many innocent Americans are named
Ahmed or Yousef or Ibrahim. Many Americans are named Saul or David or
Isaac. Is our memory so short that we don't understand the danger of
allowing detention without trial? Is our memory so short that we don't
understand the havoc that bias and bigotry can do when unrestrained by
the law? Trial by jury is our last defense against tyranny and our last
defense against oppression. We have locked up Arabs, Jews, and the
Japanese.
Do we not want to retain our right to trial by jury? Do we want to
allow the whims of government to come forward and lock up whom they
please without being tried? In our not-too-distant past Americans named
Ozaki, Ichiro, or Yuki were indefinitely detained by the tens of
thousands without trial or accusation. Will America only begin to
regret our loss of trial by jury when the people have names such as
Smith and Jones? Mark my words: This is about people named Smith and
Jones or people named David, Saul, Isaac, Ahmed, Yousef, or Ibrahim.
This is about all Americans and whether they will have due process and
the protections of the law.
We are told these people are so evil and so dangerous that we cannot
allow trials. Trial by jury is who we are. Trial by jury is that
shining beacon on a hill that people around the world wish to emulate.
It is why people came here. It is why we are exceptional as a people.
It is not the color of our skin; it is our ideas, it is the right to
trial by jury that is looked to as a beacon of hope for people around
the world, and we are willing to discard it out of fear. It is a shame
to scrap the very rights that make us exceptional as a people.
Proponents of indefinite detention will argue that we are a good
people and we will never unjustly detain people. I don't dispute their
intentions or impute bad motives to them, but what I will say is
remember what Madison said. Madison said if a government were comprised
of angels, we would not need the chains of the Constitution. We would
not need to bind our representatives and restrain them from doing bad
things to good people. If all men in government were angels, we would
not need the rules. All men in the government are not angels now and
never will be. There is always the danger that some day someone will be
elected who will take the rights away from the Japanese, Jews, or
Arabs. It happened once. We are told by these people who believe in
indefinite detention that the battle is everywhere. If the battle is
everywhere, our liberties are nowhere. If the battle is without end,
when will they return our liberties? When will our rights be restored
if the battle has no end and the battlefield is limitless and the war
is endless? When will our rights be restored? It is not a temporary or
limited suspension of our right to trial by jury but an unlimited,
unbounded relinquishment of the right to trial by jury without length
or duration.
We are told that limiting the right to trial by jury is justified
under the law of war. Am I the only one uncomfortable applying the law
of war to American citizens accused of crimes in the United States? Is
the law of war a euphemism for martial law? What is the law of war
except for something to go around the Constitution? It is an
extraordinary circumstance that might happen in a battlefield somewhere
else but should not happen in the United States. Every American accused
of a crime, no matter how heinous, should get their day in court and a
trial by a jury of their peers. These are not idle questions.
I believe the defense of the Bill of Rights trumps the concerns for
speedy passage even of a bill which I generally support. Sixty-seven
Senators voted just a few weeks ago to include a provision in this bill
that says we have a right to a trial by jury. It was plucked out in
secret in conference despite the wishes of two-thirds of the Senators
in this body--Republican and Democrat--who were concerned about
protecting the right to a jury trial.
Many Senators say: Well, we tried and we lost. They outmaneuvered us;
they were sneakier than we were. I disagree that we give up. I think
the time is now. I think we make a statement. The fight is today. The
subject is too dear. If a majority today were to stand and say: The
right to trial by jury is important enough to delay the Defense
authorization bill for 2 weeks, I think it would be an important
message to send.
So today I stand and urge a ``no'' vote on what I consider to be a
travesty of justice.
Thank you.
The ACTING PRESIDENT pro tempore. The Senator from Michigan.
Mr. LEVIN. Mr. President, the Senator from Kentucky is flat out
wrong. There is no such language in the bill which denies the right to
trial by jury. I think those are the same kinds of charges against last
year's bill. We are trying to keep up with the false charges that the
Senator makes, so we put language in this year's bill which says
nothing in last year's bill does or could be implied to do any such
thing as the Senator from Kentucky is charging. We have language in
this year's bill and nothing from last year's bill. That was the same
charge he made against last year's bill, shall be construed to deny the
availability of the writ of habeas corpus or deny any constitutional
rights in a court ordained or established under article III of the
Constitution to any person inside the United States.
Then he makes a totally outlandish charge that they were
outmaneuvered and they were sneakier than we were. Where does that come
from? What is the basis for that kind of a charge
[[Page S8328]]
against Senator McCain and me? We have put language in this bill which
makes it absolutely clear that nothing we have adopted here in this
Senate does anything like what the Senator from Kentucky said--denying
the people the right to jury trial.
I totally reject his argument. He does not quote any language in this
bill that does what he says this bill does. The Senator from Kentucky
actually started his statement by saying this bill has language which
will deny a trial by jury. What language and what page? It makes the
allegation and sort of lets it sit there. Well, it is flat out wrong.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
Mr. GRAHAM. Mr. President, I want to congratulate the authors and
managers of the bill in the House with coming up with a very good bill
for our military which will have pay raises and trying to increase our
defenses.
I don't mind saying that I think we are at war. I know the Presiding
Officer believes that. How long does the war last? I don't know. I
cannot tell anyone. Am I supposed to know that? Can we not fight it
unless we know the date it ends? America, is it part of the
battlefield? Tell me. Where do you think they want to hit us the most?
What do you think al-Qaida would like to do more than anything else?
They would like to come here and destroy the building I am speaking in.
The only reason they cannot get here yet is because we are fighting
them over there.
We are gathering good intelligence. We are taking the war home to
them. Our intelligence agencies, our FBI, our military, our CIA are all
over the world tracking these crazy people so they cannot get here. So
to suggest that I cannot tell when the war ends, therefore we have to
turn it into a crime, is dangerous and absurd.
Did they know when Germany, Berlin, or Tokyo was going to fall? What
happened to the German saboteurs who landed in Long Island during World
War II? They were captured by the FBI and turned over to the military.
What happened to the American citizens who were helping the German
saboteurs? They were held as enemy combatants.
To my good friend from Kentucky, I don't doubt his passion or
sincerity; I doubt his judgment on these issues.
The Supreme Court has spoken three different times. Less than 6 or 7
years ago an American citizen was caught helping the Taliban in
Afghanistan and they said we could hold one of our own as an enemy
combatant until the hostilities cease, and that is a hard time to
figure out.
Let's get this right. If an American citizen helping the Taliban in
Afghanistan kills our soldiers, can be captured and held as an enemy
combatant according to the Supreme Court, what kind of world would we
live in if the al-Qaida collaborator American citizen attacked us here,
trying to kill us in our own homeland, to say: That doesn't count. The
American citizen is no longer at war because we are in America; we have
to read them their rights and give them a lawyer and we can't hold them
for military intelligence-gathering purposes.
My good friend doesn't understand that in fighting a war, the goal is
to win the war; it is to defeat the enemy. In fighting a crime, the
goal is designed to hold somebody accountable for an illegal wrong. I
have been a military lawyer for 30 years. He may not understand the law
of war, but I do and the Supreme Court does. The Supreme Court has said
in World War II and in this war, if an American citizen collaborates
with the enemy, they will be given due process under the law of war. A
Federal judge will hear the claim: I am wrongly held. I am not part of
al-Qaida or the Taliban. That is the only time one could be held as an
enemy combatant. In helping al-Qaida or the Taliban, one has to be
involved in a plot or an act. If a Federal judge agrees with the
government that, yes, in fact, there is evidence to suggest an American
citizen is helping the Taliban or al-Qaida, I think most Americans
would say it is reasonable to hold that person to find out what they
know about this attack and future attacks.
Can my colleagues imagine what would happen in this country if three
people were running up the Capitol steps to blow up the Capitol and one
of them survived who was an American citizen and we couldn't hold them
and question them by asking: Where did you train? Is there any other
attack planned? What do you know? Whom did you work with? That we would
have to say, within hours or a day or two, here is your lawyer and you
have a right to remain silent? Can we imagine what would have happened
in World War II if the American citizens who helped the Nazis--if we
turned that into a common crime.
The difference between me and the Senator from Kentucky is that I
believe with all my heart and soul that the al-Qaida, Taliban groups
are at war with us and are trying to come to our homeland. I know they
are trying to find American citizens who would help them, and they
will. There has never been a war in America where somebody within the
American citizen community did not collaborate with the enemy. That is
happening today. When that day comes and we capture that person, I want
as an option the ability to hold them as an enemy combatant, as we did
in other wars. They will get their day in court, but they will not be
read their rights or given a lawyer on the spot because that would stop
intelligence gathering.
To the managers of this bill, to the men and women of the House who
sent it over here, thank God they chose a balance between due process
and common sense.
All I will say is that the way we found bin Laden was not through
torture. I am offended by that, as are Senator McCain and Senator
Levin. The way we tracked down bin Laden is we had people held at Gitmo
for years under the law of war. We don't try them or let them go. When
we capture somebody on the battlefield, we don't hold a trial; we hold
the prisoner to try to gather intelligence and keep them off the
battlefield. Through that process, over years, the Bush administration
and the Obama administration put together the puzzle about bin Laden.
It wasn't because of waterboarding; it was because this country had
available to it the law of war detention that allows us to hold people
and get to know them over time and make sure they could not go back to
the fight and good questioning and good interrogation techniques led to
finding bin Laden. What the Senator from Kentucky is saying is it would
not be available to us as a nation if an American citizen were involved
in attacking us on the homeland. What an absurd result, that if an
American citizen joined al-Qaida to kill everybody in this room, for
some unknown reason, we would turn that into a crime rather than an act
of war.
If a person collaborates with al-Qaida or the Taliban, two things can
happen to them: They can get killed or they can get captured. Most
likely they will get a trial one day and nobody is restricting their
trial rights. What Senator Levin said is true. There is nothing in here
restricting the right of trial. What is in here is giving us the option
to hold someone as an enemy combatant so we don't have to Mirandize
them and turn an act of war into a crime.
I am afraid it will not be long before this is tested in reality. The
enemy is afoot. They are trying to penetrate our homeland. They are
seeking aid and comfort from Americans within our own country who are
going to side with the enemy, unfortunately. When that day comes, I
wish to make sure we have the ability in this war, as in every other
war, to hold them and to gather intelligence--not to torture them but
to make sure we are safe as a nation. Due process, yes. Under the law
of war, it must be so. If we turn this war into a crime, we are going
to regret it. If my colleagues don't believe we are at war, then I
cannot disagree more. I cannot tell my colleagues when the war ends,
but I will tell them how it ends. This is how it is going to end: We
are going to win and they are going to lose because we can't afford to
lose.
Between now and when that day comes, we are going to take the fight
to them. If we find an American citizen helping the enemy overseas--
this President ordered the killing by drone of al-Awlaki, an American
citizen overseas--I believe it was Yemen--and the President said: I
have ample evidence he is now assisting al-Qaida overseas to attack
American targets and I am going to take him out. Well done, Mr.
President. Well done, Mr. President.
[[Page S8329]]
If most of us agree we can kill an American citizen helping al-Qaida
kill us overseas, we can't capture an American citizen helping al-Qaida
here at home and hold him for questioning under the law of war, what an
absurd result.
I not only am going to vote for this bill, I am going to celebrate
the fact we have done nothing to stop the right to trial. As Senator
Levin said, there is not one thing in this bill that restricts a
person's right to a trial. What we do have in this bill is the
recognition we are at war and we retain as an option that has not been
used--there is no American citizen in detention--but there may be a
need for that one day and we retain that right under this bill.
Mr. McCAIN. Will the Senator yield for a question, briefly?
Mr. GRAHAM. Sure.
Mr. McCAIN. Under the scenario as envisioned by the argument made by
the Senator from Kentucky that if an American citizen is overseas, as
al-Awlaki was in Yemen, and we took a drone and killed him, which was a
decision made by the President of the United States----
Mr. GRAHAM. Good decision, Mr. President.
Mr. McCAIN. But if al-Awlaki had been in the United States of
America, a citizen engaged in the same activities that justified him
being killed, then Mr. al-Awlaki would have been entitled to his
Miranda rights, a trial by jury, habeas corpus, all that as if he were
treated as an American citizen. I don't think many people would quite
understand that distinction of geography.
Mr. GRAHAM. It makes no sense, I say to the Senator. He would be
entitled to a habeas hearing if he were caught in the United States,
but he would be held under the law of war because the allegation is not
that he was committing a crime but that he was collaborating with the
enemy.
So, yes, we could have a scenario, according to the view of the
Senator from Kentucky, that we could kill somebody--an American citizen
overseas helping the enemy kill our troops--but if they joined with al-
Qaida here at home, all of a sudden we have to give them a lawyer and
read them their rights and we can't hold them under the law of war
detention to find out what they know about an impending attack. That
makes absolutely no sense. The Supreme Court has rejected that kind of
thinking.
I hope that day never comes, but I can tell my colleagues this: I
don't know when the war is over, he is right about that, but I know
this: As long as I am in the Senate, we are going to fight it and we
are going to fight it as a war, not a crime.
Mr. McCAIN. If the Senator will yield further, there is every
indication in the Middle East and around the world that we see that al-
Qaida is on the way back, far from being defeated.
I just wish to make an additional comment to my friend, Senator
Levin, the chairman, whom I have had the honor of bringing these bills
to the floor with and working together with for 25 years. I was tempted
to leave it unresponded to, but a statement the Senator from Kentucky
made: They were sneakier than we were--I have to say to the chairman, I
don't think the chairman has ever conducted our committee and our
deliberations and our work on the floor and in conference in any way as
being sneaky. I categorically reject that kind of comment, and I don't
think it is worthy of the performance the Senator from Michigan has
provided to this committee.
Mr. LEVIN. I very much thank my dear friend from Arizona.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. I thank the Presiding Officer. The only one thing I will
add to this subject before we vote--the Senator from Arkansas seeks to
speak and we will run out of time soon--is that a provision which is in
our bill, which both the ranking member and myself voted for, which was
stricken, one of the arguments against it was made by the ACLU. Our
friend from Kentucky talks about something in this bill which denies
the right to jury trial and the proof he gives for that is something
that is not in the bill, which is--it violates logic, to begin with,
but putting that aside--one of the arguments against keeping it in the
bill was made by the American Civil Liberties Union and surely they
believe people's rights to trial and jury trial should not be denied.
So the allegations made by the Senator from Kentucky are wrong. There
is absolutely no substantiation for them, including the one which was
just referred to by Senator McCain. But the statement he makes that
there is language in this bill--here is the bill. Where is the Senator
from Kentucky? What page of the bill is he referring to that contains
the language he says denies people the right to trial? It is simply not
there.
I yield the floor.
[...]
Mr. DURBIN. Mr. President, I appreciate the hard work of the
chairman, Senator Levin, and the ranking member, Senator McCain, on the
fiscal year 2013 National Defense Authorization Act conference
agreement this whole year.
They have crafted reasonable, responsible compromises in many areas
of defense policy. I appreciate that the conferees were able to begin
rebalancing our force even as we continue to wind down our presence in
Afghanistan.
The men and women in uniform, as well as their families, appreciate
that even in this tough fiscal environment the bill would authorize a
1.7 percent across-the-board pay raise.
I also want to acknowledge that Conferees retained my amendment
implementing visa bans and asset freezes against those supporting the
M23 rebels in Congo.
But there are also several deeply troubling provisions that I must
point out. The first issue goes to fundamental questions about basic
constitutional protections. Last year I voted against the Defense
Authorization bill because the bill included several troubling
provisions relating to the treatment and custody of detainees. These
provisions make it harder for the government to fight terrorism and are
inconsistent with America's commitment to our Constitution and
fundamental human rights.
This legislation--for the first time in American history--requires
the military to take custody of detainees in the United States.
FBI Director Robert Mueller strongly objected to this military
custody requirement. In a letter to the Senate last year, Director
Mueller said the bill would, quote, ``inhibit our ability to convince
covered arrestees to cooperate immediately, and provide critical
intelligence.''
Director Mueller concluded that this provision ``introduces a
substantial element of uncertainty as to what procedures are to be
followed in the course of a terrorism investigation in the United
States.''
Last year's bill also included a provision that could be interpreted
to authorize the indefinite detention--without charge or trial--of
American citizens in the United States.
And the bill included restrictions that would make it virtually
impossible to close the Guantanamo Bay detention center, which our most
senior defense and intelligence officials have told us is a recruitment
tool for Al Qaeda.
I was hopeful that this year the Defense Authorization bill would
undo some of the damage done by last year's bill. Unfortunately, that
is not the case.
I am troubled that the conference report does not include the
Feinstein-Paul amendment, which passed the Senate by a strong
bipartisan vote of 67-29.
This amendment would have prohibited the indefinite detention of
American citizens and lawful permanent residents apprehended in the
U.S. unless this detention is expressly authorized by Congress.
This amendment would have made it clear that last year's Defense
Authorization bill--as well as the authorization to use military force
that Congress passed after the 9/11 terrorist attacks--did not
authorize indefinite detention of Americans in the United States.
This is a commonsense amendment that is consistent with our
Constitution and fundamental human rights. 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.''
But the conference report struck the Feinstein-Paul amendment.
Instead, the conference report includes a provision stating that the
use of force authorization and last year's Defense Authorization bill
should not be construed to deny the right to challenge their detention
in court--the legal term is habeas corpus--to individuals detained in
the U.S. who would otherwise have this right.
This provision is essentially meaningless. The Supreme Court has
already held that anyone in the custody of our government has the right
to habeas corpus.
This provision would not prohibit long-term detention of American
citizens without trial. Without the Feinstein-Paul amendment, it
remains unclear whether indefinite detention is permitted.
I also continue to oppose provisions in the conference report that
limit the administration's ability to close the Guantanamo Bay
detention facility.
Like last year's Defense Authorization bill, this legislation
provides that no detainee held at Guantanamo Bay can be transferred to
the United States, even for the purpose of holding him for the rest of
his life in a federal super-maximum security facility.
And like last year's bill, this legislation provides that the
government may not construct or modify any facility in the United
States for the purpose of holding a Guantanamo Bay detainee.
The Obama administration has threatened to veto the conference report
because of these provisions. Here is what the administration says:
``Since these restrictions have been on the books, they have limited
the Executive's ability to manage military operations in an ongoing
armed conflict, harmed the country's diplomatic relations with allies
and counterterrorism partners, and provided no benefit whatsoever to
our national security.''
I agree. I continue to believe that closing Guantanamo is an
important national security priority for our Nation.
And I am joined by many national security and military leaders, who
say that closing Guantanamo will make us safer. Among them: General
Colin Powell, the former Chairman of the Joint Chiefs of Staff and
Secretary of State; Former Republican Secretaries of State James Baker,
Henry Kissinger, and Condoleezza Rice; Former Defense Secretary Robert
Gates; Admiral Mike Mullen, former Chairman of the Joint Chiefs of
Staff; and dozens of other retired admirals and generals.
Retired Admiral Don Guter was the Navy Judge Advocate General at the
Pentagon on 9/11. Listen to what he said just a few weeks ago: ``I want
justice. But Guantanamo has not provided that justice and has not made
us safer. . . . Guantanamo remains a recruiting tool for terrorists and
will remain so until that prison is shuttered.''
I also received a letter from dozens of human rights and religious
organizations pointing out that many people around the world view
Guantanamo as a symbol of America's retreat from our traditional role
as a human-rights champion.
These detainee provisions are not just bad human rights and national
security policy. They are completely 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 and are now being safely held in federal
prisons. 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 Shoe Bomber.
Unfortunately, the provisions in this conference report limit the
flexibility
[[Page S8333]]
of the administration to respond to terrorism in the most effective
way. And they do so in a way that calls into question our commitment to
our Constitution and human rights.
[...]
[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)]
[Senate]
[Pages S8336-S8340]
[...]
Mrs. FEINSTEIN. Mr. President, I rise to address the conference
report for the National Defense Authorization Act for Fiscal Year 2013
which we will vote on later today.
I will vote yes on this bill as I did on last year's bill even though
nothing in it effectively addresses indefinite military detention,
which 67 Members of this body are now on record opposing.
My colleagues will recall that I introduced, with a large bipartisan
group of cosponsors, an amendment that provided that U.S. citizens and
lawful permanent residents who are apprehended on U.S. soil cannot be
detained indefinitely, without charge or trial. The Senate passed this
amendment by an overwhelming bipartisan vote, 67 to 29. I am saddened
and disappointed that this detention amendment was dropped in
conference. I don't understand why we could not ensure that, at the
very least, American citizens and green card holders cannot be held
indefinitely without charge or trial. As I have said over the past few
days, to me this is a no-brainer and is a real missed opportunity.
The main reason I support this bill is because it authorizes $640.7
billion for fiscal year 2013 for the Department of Defense.
This funding ensures our troops deployed around the world--especially
those in Afghanistan--have the equipment, resources, and training they
need to defend this Nation. For example, the Defense bill fully funds
the President's budget request of $5.7 billion to build the capacity of
the Afghan National Security Forces so those forces can take over for
U.S. forces and take the security lead throughout Afghanistan by 2014.
The Defense authorization bill will also provide the resources
necessary to support our defense strategies and allow our military to
modernize equipment worn out after 11 years of war in the difficult
battlefield environments of Afghanistan and Iraq.
Such resources include investments in our Global Hawk unmanned
aircraft, which provide critical intelligence, surveillance and
reconnaissance information. These aircraft have also provided crucial
support for disaster response efforts, including for rescue workers in
the wake of the earthquake, tsunami, and nuclear disaster in Japan.
To increase diplomatic security around the world and so that we learn
from the mistakes that took the lives of four Americans in Benghazi,
this bill requires the Secretary of Defense to develop a plan to
increase--by up to 1,000--the number of marines in the Marine Corps
security guard program to be able to deploy them to troubled facilities
to protect our personnel abroad.
As I mentioned, the Senate overwhelmingly passed, on a 67 to 29 vote,
the amendment to ban the indefinite detention of U.S. persons--citizens
and green card holders--without charge or trial.
The amendment would have updated the Non-Detention Act of 1971, which
clearly states:
No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an act of Congress.
The amendment would have built on the Non-Detention Act of 1971 so
that it applies to not just U.S. citizens but also to green card
holders. It would have provided that no military authorization allows
indefinite detention of U.S. citizens and green card holders
apprehended inside the United States.
The detention amendment stated:
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.
Unfortunately, as soon as the amendment passed, the language was
misrepresented by critics on the left as well as proponents of
indefinite military detention on the right, particularly after a
handful of Senators who previously opposed this effort switched their
vote at the last minute.
Make no mistake, the amendment is not a Trojan horse designed to
surreptitiously authorize indefinite detention in the United States.
The text of the amendment is clear, and the legal experts I consulted
on the amendment agree.
[[Page S8337]]
For example, Stephen Vladeck of American University, a law professor
who has litigated military detention issues in the Supreme Court and an
expert on national security law, testified this year before the Senate
Judiciary Committee on S. 2003, the Due Process Guarantee Act, which is
almost identical to the detention amendment to the Defense
authorization bill. Professor Vladeck reviewed the statements of
support for the amendment by Senators Carl Levin and Lindsey Graham--
both of whom advocated indefinite military detention powers in the
past.
Professor Vladeck wrote:
The Graham/Levin colloquy sought to cast [the Feinstein]
language as doing exactly the opposite of what it says, i.e.,
as confirming that U.S. citizens can be detained even within
the territorial United States pursuant to the logic of the
Supreme Court's opinion in Hamdi [v. Rumsfeld].
Professor Vladeck concluded that Senators Levin and Graham were
``exactly wrong'' because ``the plain text of the bill is simply
irreconcilable with that understanding.''
In another article, Vladeck and Georgetown Law Professor Marty
Lederman, another expert on military detention and national security,
wrote:
If it were to be enacted, the amendment would ensure that a
future president could not construe the September 18, 2001
Authorization for Use of Force (AUMF), the FY2012 NDAA, or
any comparable statute to authorize the military detention of
citizens and LPRs [lawful permanent residents] apprehended
within the United States.
I agree with these law professors--with whom I worked, in fact, on
the drafting of my bill and amendment. It is true the courts have
previously reached ambiguous and conflicting decisions regarding
whether U.S. persons apprehended on American soil may be subject to
indefinite detention under the laws of war. However, far from adding to
this ambiguity, I am confident this amendment would bring much-needed
clarification to this area of the law.
The Feinstein detention amendment would have updated the Non-
Detention Act of 1971 which Congress passed to repudiate the shameful
Japanese-American internment experience during World War II. That 1971
landmark legislation, which liberal critics of the detention amendment
have made no effort to overturn, protected only U.S. citizens from
detention. In contrast, the amendment broadens protections from
indefinite detention, protecting both green card holders, called
``lawful permanent residents'', as well as citizens.
At a time when civil liberties are under attack, we should not let
the perfect be the enemy of the good. As Professors Lederman and
Vladeck note, ``The new Feinstein amendment . . . does protect the vast
majority of persons in the United States from noncriminal detention
without express statutory authorization . . . .''
As I said during the floor debate on the amendment, I would support
extending the protections in the amendment to all persons in the United
States, whether lawfully or unlawfully present, but so far we have
lacked sufficient support in the Senate to do this. Most Republican
cosponsors of the bill said they would not support the legislation if
it went that far.
Other critics misrepresent the language of the amendment by charging
that it could be read to imply there is an authorization to
indefinitely detain illegal immigrants and legal visitors in the United
States. In doing this, they ignore the language in paragraph 3 that
explicitly prevents such an interpretation. Paragraph 3 of the
amendment clarifies that the text to be added to the Non-Detention Act
of 1971 ``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.''
Again, don't take my word for it. Professors Lederman and Vladeck say
that the amendment ``would do nothing of the sort.''
The bottom line: Indefinite military detention is incompatible with
our values, and this amendment would have been a major step forward to
make sure we never return to the dark chapter of American history when
we detained Japanese-American citizens out of fear during World War II.
Mr. President, some have pointed to section 1029 of the conference
report and said that it accomplishes what the Feinstein amendment would
have done. That is not true.
The amendment offered by Congressman Gohmert regarding habeas corpus,
which is now section 1029 of the underlying conference report, does
nothing except restate that constitutional rights to file a habeas
claim can't be denied.
Consider the exact text of this section, which reads:
SEC. 1029. RIGHTS UNAFFECTED.
Nothing in the Authorization for Use of Military Force or
the National Defense Authorization Act for Fiscal Year 2012
shall be construed to deny the availability of the writ of
habeas corpus or to deny any Constitutional rights in a court
ordained or established by or under Article III of the
Constitution to any person inside the United States who would
be entitled to the availability of such writ or to such
rights in the absence of such laws.
This provision doesn't do anything to add to the rights of
individuals inside the United States, such as citizens, because the
writ of habeas corpus is a constitutional right to appear before a
judge to challenge the legality of an individual's incarceration.
During the colonial period, habeas corpus was understood as a writ
available to a prisoner, ordering his jailer to appear with the
prisoner before a court of general jurisdiction and to justify the
confinement.
In the Constitution, after enumerating the powers of Congress, the
drafters inserted language guaranteeing the right to habeas when they
stated, ``The privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.''
So habeas is a constitutional right that already applies to all
individuals found in the United States, and habeas rights even extend
to noncitizen detainees held in Guantanamo, who have never even set
foot in the United States.
This was the issue before the Supreme Court in the case of Rasul v.
Bush, 2004 where, in a 6-to-3 opinion written by Justice John Paul
Stevens, the Court found that noncitizen detainees at Guantanamo had
habeas corpus rights. Justice Stevens also wrote that the right to
habeas corpus is not dependent on citizenship status. The detainees
were therefore free to bring a habeas claim challenging their detention
as unconstitutional.
Because the Constitution already grants this right explicitly--
legislation purporting to grant this right is ineffective and simply
empty words, meant to make lawmakers feel good but not actually adding
anything to the rights of the American people.
The question is not whether Americans still have constitutional
rights to habeas. Of course that right and others that are guaranteed
by the Constitution remain in place. Rather, the question is, Should
the military be allowed to indefinitely detain U.S. citizens in the
first place? Should we allow the military to patrol our streets and
pick up citizens? I believe the answer to that question--both here in
the Senate and across the Nation--is a resounding no.
So I will continue to work to correct the flaws of the Fiscal Year
2012 National Defense Authorization Act, and I look forward to the
continued support of the 67 of my colleagues who voted for the
Feinstein amendment this year.
I am confident that eventually we will build the support for this
amendment that we need on the House side too. Therefore, it is only a
matter of time before we prevail. The Feinstein detention amendment is
what the American people want, and it would guarantee the fundamental
liberty that they deserve.
[...]
The PRESIDING OFFICER. All time is yielded back.
The question is on the adoption of the conference report.
Mr. McCAIN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Massachusetts (Mr. Brown), the Senator from South Carolina (Mr.
DeMint), the Senator from Illinois (Mr. Kirk), and the Senator from
Kansas (Mr. Moran).
The PRESIDING OFFICER (Mr. Franken). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 81, nays 14, as follows:
[Rollcall Vote No. 229 Leg.]
YEAS--81
Akaka
Alexander
Ayotte
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (OH)
Burr
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Feinstein
Gillibrand
Graham
Hagan
Hatch
Heller
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Roberts
Rockefeller
Rubio
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (CO)
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
NAYS--14
Barrasso
Crapo
Durbin
Enzi
Franken
Grassley
Harkin
Leahy
Lee
Merkley
Paul
Risch
Sanders
Wyden
NOT VOTING--4
Brown (MA)
DeMint
Kirk
Moran
The conference report was agreed to.
Mr. HARKIN. Mr. President, as a Senator, I have no greater
responsibility than to work to ensure our Nation's security. Our Armed
Forces must have the tools they need to keep our country safe. That is
why I support the vast majority of the provisions in the National
Defense Authorization Act and why I supported the bill that passed the
Senate. I particularly note provisions that increase pay and benefits
for our servicemembers and retirees, ensure a drawdown of our troops in
Afghanistan, allow female servicemembers access to basic health
services if they are victims of sexual assault, and limit the annual
increases in TRICARE prescription drug premiums. All of these
provisions I support and believe are important.
I oppose this bill because I do not believe it adequately reflects
our principles. I believe we can do a better job of protecting our
national security without compromising important values than what is
contained in this legislation.
This Nation has long been a beacon of liberty and a champion of
rights throughout the world. Yet since 9/11, in the name of security,
we have repeatedly betrayed our highest values. The
[[Page S8339]]
past administration believed it could eavesdrop on Americans without a
warrant or court order. It utilized interrogation techniques long
considered immoral, ineffective, and illegal, regardless of laws and
treaties. And, it intentionally sought to put detainees beyond the rule
of law. Thankfully, the current administration has ended the worst
abuses of these practices, despite the efforts of some of my colleagues
to stymie these efforts.
However, I am deeply concerned that the conference report continues
us on a dangerous path of sacrificing long-held principles.
To begin, this bill fails to make clear that under no circumstance
can an American citizen be detained indefinitely without trial. When
the bill was considered in the Senate, I was proud to join 66 of my
colleagues in supporting an amendment, authored by Senator Feinstein,
which sought to clarify that the law does not authorize the President
to indefinitely detain an American seized in the United States and
indefinitely detain them without charges and without due process. I am
heartened that President Obama has made clear he will not attempt to
exercise such power, but I am greatly disappointed that the conference
report omitted this language.
Moreover, the bill would make it much more difficult to close the
detention center at Guantanamo Bay. There simply is no compelling
reason to keep the facility open and not to bring these detainees to
maximum security facilities within the United States. The detention
center has been, and continues to be, a stain on our Nation's honor. I
agree with former Secretary of State Colin Powell who said ``we have
shaken the belief that the world had in America's justice system by
keeping [the detention center at Guantanamo Bay] open. We don't need it
and it's causing us far more damage than any good we get for it.''
In the immediate aftermath of 9/11, the Bush administration declared
a broad and open-ended ``war on terror.'' I have always considered this
a flawed description of the challenge that confronted us after the 9/11
attacks. After all, ``terror'' is an endlessly broad and vague term.
And a ``war on terror'' is a war that can never end, because terrorism
and terrorists will always be with us. Because of the never-ending
nature of this so-called ``war on terror,'' it offers a rationale for
restricting civil liberties indefinitely. This is not healthy for our
democracy or for our ability to inspire other countries to abide by
democratic principles.
We will not overcome terrorism with secret prisons, with torture,
with degrading treatment, with individuals denied basic rights. Rather,
we shall overcome it by staying true to our highest values and by
insisting on legal safeguards that are the very basis of our system of
government and freedom.
Mr. LEAHY. Mr. President, today, the Senate voted, by voice vote, to
approve the conference report to accompany H.R. 4310, the National
Defense Authorization Act (NDAA) for Fiscal Year 2013. As it always
does, the NDAA included a number of important provisions, including
critical authorizations for our troops in uniform, for essential
defense programs to promote and protect our national security both at
home and abroad, and for important programs that keep ours the greatest
military in the world.
The conference report approved today also includes two important
provisions which I was proud to support. The Dale Long Public Safety
Officers Benefits Improvements Act will fill a gap in existing law and
extend the Federal Public Safety Officers/Benefits program to
paramedics and emergency medical technicians who work or volunteer for
nonprofit ambulance services, and their families, when they are
disabled or killed in the line of duty. And important measures relating
to Department of Defense law enforcement officers are also included.
While I am pleased this conference report includes important elements
such as these, I remain deeply concerned about several troubling
provisions that remain in the law relating to the indefinite detention
of individuals without charge or trial and the conference report drops
the Senate amendment we adopted to protect against abuses. The
indefinite detention and mandatory detention provisions that were
enacted in last year's defense authorization bill undermine our
Nation's fundamental principles of due process and civil liberties, and
I have worked to eliminate or fix these flawed provisions.
Earlier this month, during debate on the Senate bill, we took a
positive step toward fixing these flawed provisions by adopting an
amendment offered by Senator Feinstein that I supported to clarify that
our government cannot detain indefinitely any citizen or legal
permanent resident apprehended in the United States. More than two-
thirds of the Senate voted in favor of this amendment, and I viewed
this as a constructive part of our efforts to undo some of the damage
from last year's NDAA. During the Senate debate on the detention
provisions this year, I stated again my belief that the vital
protections of our Constitution extend to all persons here in the
United States, regardless of citizenship or immigration status.
Nonetheless, I voted for this amendment to affirm that indefinite
detention has no place in our justice system.
Inexplicably, however, the Feinstein amendment was stripped from the
final bill during conference negotiations between the House and Senate.
Despite such broad Senate support for the Feinstein amendment, the
conference report no longer expressly reaffirms that U.S. citizens and
legal permanent residents in America cannot be detained indefinitely
without charge or trial. Instead, we are left with the status quo of
restrictions and prohibitions on the transfer of detainees that leaves
us no closer to closing the detention facility at Guantanamo once and
for all.
I have repeatedly said that I am fundamentally opposed to indefinite
detention without charge or trial. I fought against the Bush
administration policies that led to the current situation, with
indefinite detention as the de facto policy. I opposed President
Obama's executive order in March 2011 that contemplated indefinite
detention, and I helped lead the efforts against the detention-related
provisions in last year's NDAA. A policy of indefinite detention has no
place in the justice system of any democracy--let alone the greatest
democracy in the world.
The American justice system is the envy of the world, and a regime of
indefinite detention diminishes the credibility of this great Nation
around the globe, particularly when we criticize other governments for
engaging in such conduct, and as new governments in the midst of
establishing legal systems look to us as a model of justice. Indefinite
detention contradicts the most basic principles of law that I have
pledged to uphold since my years as a prosecutor and in our senatorial
oath to defend the Constitution. That is why I have opposed and will
continue to oppose indefinite detention.
In addition to failing to rectify the indefinite detention provisions
from last year's NDAA in the conference report, I also continue to be
deeply disturbed by the mandatory military detention provisions that
were included in last year's NDAA through Section 1022. In the fight
against al Qaeda and other terrorist threats, we should give our
intelligence, military, and law enforcement professionals all the tools
they need. These limitations abandon our full arsenal of powers. I
remain concerned that the mandatory military detention requirements are
overly broad and threaten core constitutional principles. Once
sacrificed, our treasured constitutional protections are not easily
restored. After all, the policy directive of this President can be
undone by a future administration.
I find the detention provisions enacted through last year's NDAA and
the failure to fix them this year deeply troublesome. I am also
concerned about the extension of overly burdensome restrictions and
conditions on the transfer of detainees from Guantanamo, even those who
have already been found to have had no connection to terrorism. These
provisions do not represent Vermont values, they do not represent
American values, and they have no place in this world. As a result of
the failure of the conferees to seriously address these fundamental
wrongdoings and support the principles of our Constitution, I am unable
to support final passage of this year's NDAA. Moving forward, as I did
last year, I hope to foster a broader discussion about these issues and
work to
[[Page S8340]]
make concrete changes to protect American values and champion the rule
of law. We need a bipartisan effort to guarantee that the United States
remains the model for the rule of law to the world.
There is one additional provision that has been excluded from this
conference report that is of concern to me and a number of Senators and
Congressmen. Both the House and Senate approved in their defense
authorization bills language to freeze Air National Guard and Air Force
Reserve manpower and force structure in the wake of the Air Force's
announced intention to disproportionately target the National Guard as
it prepared for Budget Control Act cuts. I joined Senator Graham,
Representative Hunter and Representative Walz in leading a letter to
the conferees signed by 87 members of Congress in support of continuing
the freeze and preserving the National Commission on the Structure of
the Air Force which was included in the Senate-passed Defense
Authorization Act.
I was surprised to see that the conferees rewrote these provisions,
instead adopting in this conference report an Air Force proposal that
had been neither reviewed nor debated by either chamber. While the
final conference report does preserve the National Commission on the
Structure of the Air Force, I believe it does not go far enough to
protect the fundamental needs and strength of our Air National Guard.
I will continue to work with others here in Congress who believe, as
I do, that the Guard represents much of what is best about our
country's military.
____________________
