Washington–Senators Dianne Feinstein (D-Calif.), Rand Paul (R-Ky.) and Mike Lee (R-Utah) spoke on the Senate floor Thursday in support of the Due Process Guarantee Amendment to the National Defense Authorization Act.
A transcript of the remarks follows:
Senator Lee: Mr. President, I rise today to discuss and to urge my colleagues to support amendment number 4448, the Due Process Guarantee Amendment. This amendment addresses a little known problem that I believe most Americans would be shocked to discover even exists.
Under current law, the federal government has proclaimed the power, has arrogated to itself the power to obtain indefinitely without charge or trial U.S. citizens and lawful permanent residents who are apprehended on American soil. Let that sink in for just a minute. ??
If you're a U.S. citizen or U.S. Green card holder and you're arrested on American soil because you're suspected of supporting a terrorist group or other enemy of the United States, the federal government has claimed the power to detain you indefinitely without formally charging you or without offering you a trial. I'm not talking about American citizens who travel to foreign lands to take up arms against the United States military and are captured on the battlefield. No, I'm talking here about U.S. citizens who are apprehended right here in the United States of America.
Under current law, even they can be imprisoned for an unspecified, in fact unlimited period of time without ever being charged or being given the benefit -- without the benefit of a jury trial to which they are entitled. You don't need to be a defense attorney to recognize what an outrage this is.
Arresting U.S. citizens on American soil and then detaining them indefinitely without charge or trial is an obvious deviation from the constitutional right to due process of law. The last time the federal government exercised such power, during the internment of Japanese Americans during World War II without Congressional authorization, Congress responded by passing a law to prevent it from happening again. Of course such legal protection should not need to be codified into federal statute in the first place, but they did it anyway.
The Fifth Amendment of the Constitution states in no uncertain terms that no person shall be deprived of life, liberty or property without due process of law. But then again as James Madison reminded us, if men were angels, no government would be necessary. So in the wake of World War II, Congress passed and President Nixon signed the Non-Detention Act of 1971 which states, “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
Those last few words are absolutely crucial, except pursuant to an Act of Congress. The Non-Detention Act of 1971 recognized as I believe most Americans do, that in some cases, in some grave, treacherous, unfortunate case, indefinite detention of U.S. citizens may in the eyes of some be deemed necessary.
But the point is that the federal government does not inherently possess the power of indefinite detention. To the extent such power can even be said to exist within our constitutional framework at all, a question that many of us would regard as at least debatable. Certainly only an Act of Congress such as an authorization for the use of military force or AUMF or perhaps a declaration of war can give the federal government that power.
But fast forward 40 years and this important legal protection has eroded. You see, in 2011, 40 years after the passage of the Non-Detention Act of 1971, Congress passed its annual National Defense Authorization Act for Fiscal Year 2012. The predecessor of the bill that we're considering today.
In that version of the NDAA, there was a provision, section 1021 giving the federal government the power to detain U.S. citizens indefinitely without trial, even those who were apprehended on American soil. Now, it may sound like section 1021 meets the Act of Congress threshold established by the Non-Detention Act of 1971, but importantly, it does not.
It does no such thing. Here's why. The language of section 1021 merely presumes that the 2001 AUMF gives the government the right to detain U.S. citizens indefinitely without having to prove anything. Even though an explicit grant of such power appears nowhere, nowhere at all in the 2001 AUMF. My amendment would resolve this problem.
In clear and straightforward language, my amendment clarifies that a general authorization to use military force, a declaration of war or any similar authority, on its own shall not be construed to authorize the imprisonment or detention without charge or -- detention without charge or trial of a citizen of the United States apprehended in the United States.
This means that if Congress believes it's necessary to have the power to indefinitely detain United States citizens captured in the U.S., then Congress must expressly say so in any authorization it passes. My amendment recognizes that their due process protections of U.S. citizens are far too important to leave up to implied legal contemplation.
The 2001 AUMF does not expressly state that the federal government has the power to detain indefinitely American citizens on American soil. You will not find that. So if those who believe that it is somehow in the national security interests of the United States for the federal government to have that power, they should file an amendment to the AUMF that says so explicitly.
And then we can see what the American people think and we can find out just as importantly what their elected representatives in the House and in the Senate think. Or they can file an entirely new AUMF that provides such authority expressly.
Now, Mr. President, this amendment, the one that I'm discussing today, this should not be controversial. In fact, in 2012, just a year after the initial offending provision that I described a moment ago, was passed, the Senate passed this amendment with 67 votes, in large part thanks to the tireless efforts of my distinguished colleague, the senior Senator from California, Senator Feinstein, who joins me as a cosponsor of the amendment today.
Unfortunately, the Due Process Guarantee Amendment was stripped from that version of the NDAA. The NDAA passed in 2012 or 2013 during the conference process. At the time some opponents of the amendment were under the impression that it would extend due process protections to U.S. citizens apprehended outside the United States, but that, Mr. President, is undeniably false.
The Due Process Guarantee Amendment applies only to U.S. citizens and lawful permanent residents who are apprehended on U.S. soil. It has been four years since that misunderstanding prevented Congress from passing this commonsense, bipartisan reform.
That is more than enough time for this institution to gain clarity on what this amendment does do, and just as importantly, on what this amendment does not do. And so it is time, Mr. President, that we finally pass this amendment. And I urge each of my colleagues to do so.
Senator Paul: Will the Senator yield for a question?
Senator Lee: Yes.
Senator Paul: Four years ago we passed legislation under the defense authorization that allows the American government to detain an American citizen without a trial. Think about that. One of our basic rights, one of our basic rights, one of our most basic rights is to have a jury of our peers. And you say, oh, well, it'll never be used.
President Obama recognized this. He said, this is a terrible power and I promise never to use it. Any president who says a power is so terrible he's not going to use it should not be on the books. As the Senator from Utah said, it's not about having laws that require angels to be in charge of your government.
Someday there will be someone in charge of the government that makes a grievous mistake, like rounding up the Japanese. So we have to be very, very careful about giving power to our government. That's what the challenge is here. Many will say, well, we are at war and at war you have to have the law of war. What is the law of war also known as? Martial law.
But this is a war that does not seem to have an end. They're not asking you for a one- or two-year period in which there won't be trials. They're asking you to relinquish your right to trial for a war that may have no end. And I want you to imagine this. Who could these enemy combatants be that may not get trials?
Imagine that you're an Arab-American living in Dearborn, Michigan, and you send an e-mail to someone overseas. May be that person is a bad person. But should not an Arab-American in Dearborn, Michigan, have a right to defend themselves in court and say, I was just sending an e-mail to them, but I am not a terrorist. Shouldn't they get the right to defend themselves?
We need to be very careful that as we fight this long war that we don't wake up one day and say, we won the war but we lost what we stood for, we lost the bill of rights, we lost what our soldiers -- I know soldiers who have lost two arms and a leg fighting for us, and they come back and they say, they were fighting for the bill of rights. That's what this should be about, protecting the bill of rights while they're gone.
And so the question I have for my esteemed colleague is, some will say, well, they get a hearing, they get a habeas hearing, they go before a judge. Isn't that due process? Is a habeas hearing equivalent to due process?
Senator Lee: No, no, it may include habeas but some might say habeas corpus is the beginning of due process, not the end of the sometimes it occurs at the beginning, sometimes at the end. But regardless of when it occurs, a habeas proceeding does not represent the sum total universe of what due process moons.
Look you can't read the Fourth, Fifth, Sixth, and Eighth amendments to the Constitution to see what happened in the version of the NDAA that we passed in 2011 was an affront to the constitutional order. It was an aberration. Now, we're not asking for anything drastic.
All we are asking here is that before the government takes the type of drastic step you're describing, that at a minimum that we require Congress to expressly authorize that is. Is that really too much? And for those who would say we're at war, we're in danger and I understand the point. There are those who don't like our way of life. They perhaps want to do us harm. For those who would say that we are at war and we've got to take that into account and we've got to consider that, my response is okay, if that's the case, then let's at least do it the way we're supposed to do it, let's at least have that discussion.
Rather than doing it by subterfuge, rather than doing it under a cloud of uncertainty, rather than doing it by implications. We would to do so expressly. That's all this amendment does.
Senator Paul: Let me clarify in a follow-up question. If an American citizen goes to Syria and fights with ISIS and is captured on the battlefield, this amendment would not mean that they get a trial?
Senator Lee: No.
Senator Paul: They still could be held as an enemy combatant?
Senator Lee: This would not cover that at all. That person is captured on the battlefield outside the United States. That person wouldn't be covered by this amendment. Pau, let's also be clear what we're talking about. People who have been defined as enemy combatants aren't always holding a weapon. You can be a propagandist.
For example, we have had propagandists who were killed overseas who were propagandists for the enemy. So it is conceivable that an American citizen could be exchanging information, and say something derogatory about us or something in favor of the enemy and that could be considered to be -- that person is now a propagandist. I guess my point is, soon they have day in court to determine the facts and have representation as opposed to being plucked up and saying, you're going to Guantanamo bay for the rest of your life because you made some criticism that is now the state has deemed you an enemy?
Senator Lee: That's absolutely right. That is why we need these protections. That helps illustrate the slippery slope nature of this problem. It also emphasizes why it is if there are some in our body who want to make sure this power exists in the government that we must pass legislation affirmatively making it so, expressly providing that power rather than doing it indirectly.
That's all our amendment does. This is indeed a slippery slope. If all you have to do is indefinitely detain someone without charge, without trial, suspending their rights under the fourth, fifth, sixth, and eighth amendments, if that's all you have to do is charge them in a certain way, then our constitutional protections have become weakened indeed, weakened to a dangerous degree.
Senator Paul: And is it currently true that this amendment is being blocked by one senator from gaining a vote?
Senator Lee: We're trying to get a vote. This got a vote in 2012. This received 67 votes from, votes from people of both parties, from some members, including one person who you may be thinking of who has objections to it now. If we're going to vote on other amendments, this should get a vote.
No one has explained to me why this should not, at a minimum, receive a vote. If someone doesn't like this, fine, let them vote against it. This is very relevant to the National Defense Authorization Act. It was the National Defense Authorization Act passed in 2011 that was the vehicle for enacting this into law.
Senator Paul: I guess one concluding point I would make would be that we have time in the Senate body to vote about which rockets we're going to use, made in which state, in which country. Shouldn't we have time to vote about the abrogation of the Bill of Rights, of the right of a trial by jury?
I think that this is an eminently important issue, should not be pushed under the rug, and that no one should be afraid to take a stand, not everyone will agree, but we should be allowed to take a stand on the Senate floor, openly debate and have a vote on whether or not you will have your right to trial by jury or whether or not we are going to abbreviate that right and said we are at war.
But realize if you think that your rights can be abbreviated at a time of war, that the people who tell you they are going to abbreviate rights are also telling that you this war has no end. That there is no conceivable end to this war and the diminishment of your liberty, the loss of your right to trial by jury will go on and on without end.
I wholeheartedly support my fellow senator from Utah's amendment and I advocate for having a vote on the Senate floor.
Senator Lee: I agree, and I'd note the presence of my distinguished colleague from California. I yield the floor so she can address the amendment.
Senator Feinstein: I thank the Senator, Mr. President.
Senator Cassidy: The Senator from California.
Senator Feinstein: Thank you very much.
I have listened to this debate and I rise to urge my colleagues to allow a vote on this Due Process Guarantee Amendment. Senator Lee has filed it. I am a cosponsor, and I'm delighted to be a cosponsor. We actually voted on an earlier version of this amendment in 2012, so this is nothing new.
What members may not recall is that it passed with 67 votes as an amendment to this bill for 2013. I would also note that thanks to then-chairman Leahy, the bill on which this amendment is based had a hearing in the Judiciary Committee on February 29, 2012. So this bill has come before this body before. It got 67 votes, and it's had a hearing in the Judiciary Committee four years ago.
Unfortunately, the amendment was taken out of the NDAA in conference that year. So it's my hope that the Senate will pass this amendment again this year and that the House will support it so that the law will clearly protect Americans in the United States from indefinite detention from their own government.
Now, members may say, well, this isn't going to happen.
We're not going to do this. But we have done it. And I remember as a small child going just south of San Francisco to a racetrack called Tanforan. And it wasn't a racetrack. It was a detention center for Japanese-Americans during World War II. And there were hundreds of families housed there for years against their will.
To prevent this from ever happening again, congress passed and President Nixon signed into law the Non-Detention Act of 1971, which clearly states -- and I quote -- "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Now, that sounds good, but it didn't go far enough.
Despite the shameful history of indefinite detention of Americans and the legal controversy since 9/11, some in the Senate have advocated for the indefinite detention of U.S. citizens during debate on the defense authorization bill in past years. These members have argued that the Supreme Court's plurality decision in the 2004 case of Hamdi V. Rumsfeld supports their view.
However, the Hamdi case involved an American captured by the United States military on the battlefield in Afghanistan. Yasser Hamdi was a U.S. citizen who took up arms on behalf of the Taliban. And he was captured on the battlefield in Afghanistan, not on United States soil.
That's the difference. While the Supreme Court did effectively uphold Hamdi's military detention, the Supreme Court did not accept the government's broad assertions of executive authority to detain citizens without charge or trial. In fact, the Hamdi decision says clearly that it covers only -- and I quote -- "Individuals falling into the limited category we are considering."
And it did not foreclose the possibility that indefinite detention of a United States citizen would raise a constitutional problem at a later date. Since Hamdi was decided in 2004, decisions by the lower courts have contributed to the legal ambiguity when it comes to the detention of U.S. Citizens apprehended in our very own country.
You can look at the case of Jose Padilla. He's a United States citizen arrested in Chicago in 2002. Padilla was initially detained by the Bush administration under a material witness warrant based on the 9/11 terrorist attacks and later designated as an enemy combatant who allegedly conspired with Al Qaeda to carry out terrorist attacks, including a plot to detonate a dirty bomb inside our country.
Padilla was transferred to a military brig in South Carolina where he was detained for three and a half years while seeking his freedom by filing a writ of habeas corpus in federal court.
Now it's important to note that Padilla was never charged with attempting to carry out the dirty bomb plot. Instead, he was released from military custody in November 2005 and transferred to civilian federal custody in Florida where he was indicted on other charges in federal court related to terrorist plots overseas.
In a 2003 decision by the Circuit Court known as Padilla v. Rumsfeld, the Court of Appeals held that the 2001 authorization for use of military force, which we call the AUMF, did not authorize Padilla's military detention.The decision stated -- and I quote -- "We conclude that clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. 401(a), the Non-Detention Act prohibits such detentions after specific congressional authorization."
The Padilla case bounced back and forth from the Second Circuit up to the Supreme Court, then to the Fourth Circuit and the legality of his military detention was never conclusively resolved. Thus, there remains ambiguity about whether a congressional authorization for the use of military force permits the indefinite detention of United States citizens arrested on United States soil.So let me say over 12 years -- let me repeat.12 years after Padilla was initially arrested and detained, he was finally sentenced to 21 years in prison in 2014. The simple point, Mr. President, is that we can protect national security while also ensuring that the constitutional due process rights of every American captured within the United States are protected.
That's what this amendment would do. Like the amendment that passed here in 2012 with 67 votes on this floor, this amendment would prevent the government from using a general authorization for the use of military force to apprehend Americans at home and detain them without charge or trial indefinitely. So no one could be picked up and not charged and held indefinitely.
It states very simply -- this is our legislation. "A general authorization to use military force, a declaration of war or any similar authority on its own shall not be construed to authorize the imprisonment or detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States."
The amendment also modifies the existing subsection (a) of the Non-Detention Act. So it covers lawful permanent resident of the United States and ensures that any detention is consistent with the Constitution. So new subsection a will read -- and I quote -- "No citizen or lawful permanent resident shall be imprisoned or otherwise detained by the United States except consistent with the Constitution and pursuant to an Act of Congress that expressly authorizes such imprisonment or detention.”
Now let me explain the impact of these changes to the law. First, the United States government will continue to be able to detain U.S. citizens or lawful permanent residents on a foreign battlefield pursuant to an authorization to use military force, like what we passed after 9/11. That AUMF provides the authority to detain Al Qaeda, ISIL, and affiliated terrorist fires.
In other words, if the government needs to detain an enemy combatant on a foreign battlefield under a post-9/11 congressional authorization to use force, that's not barred, even if the enemy combatant is in fact a U.S. citizen. Indeed, the Supreme Court held in Hamdi that the AUMF is "explicit authorization" for that limited kind of detention. So the amendment does not disturb the Hamdi decision.
Second, when acting with respect to citizens or lawful permanent residents apprehended at home, the amendment makes clear that a general authorization for use of military force does not authorize the detention without charge or trial of citizens or green cardholders like Padilla who are apprehended inside the United States.
Instead, they should be arrested and charged like other terrorists captured in the United States. Now the simple point is indefinite military detention of Americans apprehended in the United States is not the American way and must not be allowed. In the United States the F.B.I. and other law enforcement and intelligence agencies have proven time and time again that they're up to the challenge of detecting, stopping, arresting, and convicting terrorists found on United States soil.
Our law enforcement personnel have successfully arrested, detained and convicted literally hundreds of terrorists, both before and after 9/11. Specifically, there were 580 terrorism-related convictions in the federal criminal court between 9/11 and the end of 2014. That's according to the Department of Justice.
And more recently, federal prosecutors have charged 85 men and women around our country in connection with ISIL since March of 2014. Suspected terrorists can still be detained within the United States criminal justice system using at least the following four options: One, they can be charged with a federal or state crime and held.
Two, some can be held for violating immigration laws. Three, they can be held as a material witness as part of a federal grand jury proceeding. Or four, they can be detained under section 412 of the Patriot Act, which provides that an alien may be detained for up to six months if their release "will threaten the national security of the United States or the safety of the community of any person."
Simply put, there is no shortage of authority for United States law enforcement to take the necessary actions on our soil to protect the homeland. Some may ask why this legislation protects green cardholders as well as citizens. And others may ask why the bill does not protect all persons apprehended in the United States from indefinite military detention.
Let me make clear I would support providing the protections in this amendment to all persons in the United States, but the question comes, is there some political support to expand it, to cover others besides U.S. citizens and green cardholders? We went through this in 2012, I believe, Mr. President, before you were here.
The overriding situation is to prevent the federal government from moving in and be picking up Americans and holding them without charge or trial as was done with Japanese Americans after World War II. And finally, with the passage of this, we will close out that chapter once and for all.
So this isn't about whether citizens apprehended in the United States like Jose Padilla or others who would do us harm should be captured, interrogated, incarcerated and severely punished. They should be, to the fullest extent the law allows. But not an innocent American picked up off the street and held without charge or trial.
Not because of somebody's name or looks or heritage. So what about how a future president might abuse the authority to indefinitely detain people militarily here in the United States? Our Constitution gives everyone in the United States basic due process rights. The Fifth Amendment provides no person shall be deprived of life, liberty, or property without due process of law.
And this is a basic tenet of our Constitution and our values. People are entitled to notice of charges, to an opportunity to be heard, and to a fair proceeding before a neutral arbiter. In criminal cases the accused also has a right to a speedy and public trial by a jury of their peers.
So these protections are really a sacred part of who we are as Americans, and I think it's something we all take great pride in and that now is once again the time. We did this in 2012 and the 2013 NDAA bill. It received 67 votes on this floor. And I would hope that we would not be blocked from taking another vote on this.
We experimented with indefinite detention during World War II. It's a mistake we all realized, and a betrayal of our core values. So let's not repeat it.
I want to thank Senator Lee, Senator Tom Udall, Senator Cruz, Senator Paul and others who have worked with us on the issue through the years. And I urge my colleagues to support the amendment. I yield the floor. Thank you very much.