[Congressional Record Volume 158, Number 166 (Friday, December 21, 2012)]
[Pages S8325-S8336]


  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 

[[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)]
[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 
  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, 

       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:

       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 
  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.]


     Brown (OH)
     Johnson (SD)
     Johnson (WI)
     Nelson (NE)
     Nelson (FL)
     Udall (CO)
     Udall (NM)



                             NOT VOTING--4

     Brown (MA)
  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.