National Defense Authorization Act For Fiscal Year 2017
Floor Speech
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Mr. LEE. Mr. President, I rise today to discuss and urge my colleagues to support amendment No. 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 detain 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 are a U.S. citizen or a U.S. green card holder and you are arrested on American soil because you are 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 am 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. I am talking 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 and 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 charges or a trial are obvious deviations from the constitutional right to due process of law.
The last time the Federal Government exercised such power and did so without congressional authorization was during the internment of Japanese Americans during World War II. 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. Then again, as James Madison reminded us, if men were angels, no government would be necessary.
In the wake of World War II, Congress passed and President Nixon signed the Nondetention 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 Nondetention Act of 1971 recognized, as I believe most Americans do, that in some cases--in some grave, treacherous, unfortunate cases--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. The extent to which such power can even be said to exist within our constitutional framework at all is 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. Fast forward 40 years, and this important legal protection has eroded.
In 2011, 40 years after the passage of the Nondetention Act of 1971, Congress passed its annual National Defense Authorization Act for fiscal year 2012, the predecessor of the bill that we are 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. It may sound as though section 1021 meets the ``Act of Congress'' threshold established by the Nondetention Act of 1971, but importantly it does not. It does no such thing. Here is why: The language of section 1021 merely presumes that the 2001 AUMF gives the Federal Government the right to detain U.S. citizens indefinitely without having to prove anything, even though an explicit grant of such power appears 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 trial of a citizen or lawful permanent resident of the United States apprehended in the United States. This means that if Congress believes it is necessary to have the power to indefinitely detain U.S. citizens who are captured in the United States, then Congress must expressly say so in any authorization it passes.
My amendment recognizes that the 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 indefinitely detain U.S. citizens who were apprehended on American soil. It just doesn't say it. You can look at the 2001 AUMF and you will not find that. For those who believe 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 expressly provides such authority.
This amendment--the one I am discussing today--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, Mrs. Feinstein, who today joins me as a cosponsor of the amendment.
Unfortunately, the due process guarantee amendment was stripped from that version of the NDAA passed in 2012 for 2013 during the conference process. At the time, some opponents of the amendment were under the impression that it would extend due process provisions to citizens outside of the United States, but that 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 4 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. So it is time that we finally pass this amendment, and I urge each of my colleagues to do so.
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Mr. LEE. Yes.
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Mr. LEE. No. No. Due process can include habeas, but someone might say habeas corpus is the beginning of due process, not the end. Sometimes it occurs at the beginning, sometimes at the end, but regardless of when in the process it occurs, a habeas proceeding does not represent the sum total universe of what due process means.
You can't read the Fourth, Fifth, Sixth, and Eighth Amendments of the U.S. Constitution to see that what happened in the version of NDAA that we passed in 2011 was an affront to the constitutional order. It was an aberration.
We are not asking for anything drastic. All we are asking here is that before the government takes this step--the type of drastic step you are describing--that at minimum we require Congress to expressly authorize that. Is that really too much?
For those who would say that we are at war, we are in danger--and I understand that. There are those who don't like our way of life. They even perhaps want to do us harm. For those who would say that we are at war and we have to take that into account and consider that, my response is, OK, if that is the case, then let's at least do it the way we are 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 implication. We need to do so expressly. That is all this amendment does.
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Mr. LEE. No.
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Mr. LEE. That is correct. This wouldn't cover them at all because that person is outside the United States. That person is captured on a battlefield outside the United States. That person wouldn't be covered under this amendment.
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Mr. LEE. That is absolutely right, and that is precisely why we need these protections. That helps illustrate the slippery-slope nature of this problem. And it also emphasizes why it is that 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 is all our amendment does.
This is indeed a slippery slope. If all you have to do to indefinitely detain someone without charge, without trial, suspending their rights under the Fourth, Fifth, Sixth, and Eighth amendments--if that is all you have to do, is charge them in a certain way, then our constitutional protections have become weakened, indeed, to a dangerous degree.
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Mr. LEE. We are trying to get a vote. This got a vote in 2012. It received 67 votes from people of both parties, votes from some Members--including at least one person whom you may be thinking of who has objections to it now. We need this to get a vote. If we are voting on other amendments, which we should be doing, this should get a vote. Nobody has explained to me why this should not at a minimum receive a vote. If somebody doesn't like this, fine, let them vote against it. But we should have a vote on this because this is 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.
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Mr. LEE. I agree.
The fact is, I have no problem with either of these amendments. I will gladly not only allow a vote on them, but I will also vote for the amendment from Senator Shaheen and the amendment from Senator Moran. I support both of them, but I would like a vote on my amendment as well. This is an issue I have worked on for 5 years. This issue arose 5 years ago when a provision was slipped into the NDAA that we passed that year that I think raises significant concerns.
I have worked with my colleague, the senior Senator from California, and Senators on both sides of the aisle, and put together a proposal to deal with that language. We put that in and had a vote on it in 2012, and 67 Members of this body voted for it, including some of the people who have spoken in the last few minutes. This is an issue that became a part of our law because of the NDAA 5 years ago. It is appropriate to bring this up now.
Moments ago, the Senator from South Carolina made reference to an objection I made to an amendment of his within the Senate Armed Services Committee on which he and I serve. It is true that I made an objection because in the committee we have some jurisdictional rules. There are reasons why certain amendments aren't jurisdictionally proper within the committee. There was a reason I didn't bring up the amendment that I wanted to vote on within the committee because of a jurisdictional issue. I was told last year and this year that if this is an amendment you want to bring up, the appropriate time to do so is on the floor and not in committee. The reason I did that is that there are jurisdictional issues present within the committee.
Again, I don't have a problem with the Shaheen or Moran amendments. I will support both of them. All I am asking for is to give me a vote on my amendment as well.
Therefore, I ask that the unanimous consent be modified to include my amendment--amendment No. 4448.
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Mr. LEE. Mr. President, will the Senator yield?
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Mr. LEE. If the Senator will yield, I will answer----
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Mr. LEE. Mr. President, I have been asked by a couple of my colleagues why it is that I couldn't just have the good sense to let their amendments go through. I say let's do it. Let's have it right now. I support the amendment. Let's vote on it right now. Let's vote on Senator Moran's amendment right now, and let's vote on mine right now.
Now the comparison has been made by the Senator from South Carolina that because he didn't get his vote because someone objected this morning to his amendment dealing with the Export-Import Bank, that I should also have my amendment blocked.
It is important to realize that the Export-Import Bank was not created by a previous iteration of the National Defense Authorization Act. The provision I am objecting to here and the provision I am trying to address here was, in fact, created by a previous iteration of the National Defense Authorization Act. It was passed in 2011 with, I believe, far too little consideration, without the American people being aware of what they were doing, and it remains on the books to this day.
The next argument made by my friend from South Carolina is an interesting one, which is that this needs more of an airing, needs more of a hearing. He has promised me now a hearing on the Judiciary Committee which he chairs. As much as I appreciate that gesture, that is not enough.
Let me replay a couple of things. First of all, I have been working on this for 5 years. I got a vote on it 4 years ago, and 67 Senators voted for it. It was removed in a conference committee. Someone said there was confusion as to why it was removed in a conference committee; regardless, it was removed. I have been trying ever since then, in subsequent iterations of the Defense authorization act, to get another vote on it.
I served on the Armed Services Committee, and I was told by the chairman, my distinguished colleague, the senior Senator from Arizona last year--I told him I wanted to bring it up in committee. He said: You can't bring it up in committee because there is a jurisdictional issue with the Judiciary Committee. That is better dealt with on the floor.
I said: OK. I will deal with it on the floor.
We got to the floor. I was blocked from operating on the floor. It didn't happen.
So this year I was told: You can't bring it up in committee. There is a jurisdiction issue. You are best served waiting for the floor for that.
I said: OK. I will wait for the floor.
I brought it up again this year. Now I have been told by the chairman of the Armed Services Committee, the senior Senator from Arizona, that we will deal with it next year. I have been told by the Senator from South Carolina that he will deal with it at some unknown point in the future in a hearing--not markup, just a hearing--in a subcommittee of the Judiciary Committee which he chairs.
So we are talking about an issue now that was brought up 5 years ago, and I am being told again and again to wait, to wait, to wait more. This is an issue that got the vote of 67 Members of our body 4 years ago. This is an issue that was brought about by a previous iteration of the National Defense Authorization Act. This is the appropriate vehicle in which to address this.
This is not a frivolity. This is not just some nicety. This is not some parochial interest. This is a basic human rights interest. This is an interest that relates to some of the most fundamental protections in the U.S. Constitution.
When you say that you want to lock up American citizens detained on U.S. soil without charge, without trial, without access to a jury, indefinitely, for an unlimited period of time, you are implicating at a minimum the Fourth, the Fifth and the Sixth and Eighth Amendments to the Constitution. These are very significant.
My friend from South Carolina says we just need to take a deep breath and deal with this another day. Why does the status quo--the status quo which is insulting to the history, the traditions, the text, the context of the U.S. Constitution--why should that be the status quo? Why should we wait to deal with this? Why should the status quo be one that is insulting to the American people, one that is insulting to the descendents of those Japanese Americans who were interned in World War II indefinitely without charge, without access to trial, without access to the jury system, without access to their fundamental rights under the Fourth, Fifth, Sixth, and Eighth Amendments under the Constitution, among others? Why should that status quo prevail?
Why, moreover, should someone who is concerned about these issues-- these fundamental human rights issues, these fundamental constitutional rights issues--why should someone who is concerned about those be maligned and accused of not caring about individuals who would be harmed by the non-passage of another amendment? Why should that person be blamed when that person--I--is willing to allow a vote on the Shaheen amendment, on the Moran amendment, as long as they give me a vote on my amendment--an amendment that was allowed a vote 4 years ago, an amendment that received 67 votes--a veto-proof supermajority--only 4 years ago?
So, having been told again and again n, wait until next year, wait until next year, wait until the next committee process, wait until the next floor process, after a while, one begins to discern a pattern. That is a pattern that I am discerning.
There is another pattern that I discern, which is a pattern in which when you allow government to exercise a certain power, even if it might not being exercised at the moment, eventually it will. That is why we put precautionary language within our laws. That is why we have rights in our laws. What are rights, after all, but statements of law that restrict action by the government?
As Madison noted in Federalist 51, the government is a reflection of human nature. To understand government, you have to understand human nature. If men were angels, we would have no need of a government. And if government could be administered by angels, we would have no need for these external constraints on government, on its ability to exercise power. But we have learned through sad experience that when human beings get power and when they get excessive power, sometimes they abuse that power, so we have to constrain it. And it is important that we decide that we are going to constrain it before the moment arrives, lest we see another Korematsu moment, lest we see the internment of more American citizens without charge, without trial, on an indefinite basis, on the basis of mere accusations--accusations unproven, accusations untested by a jury.
The whole reason for having a Constitution rests on this understanding. This fundamental understanding is that when government power grows, when it expands, it does so at the expense of individual freedom, and it sometimes does so at great risk to the human soul, at great risk to the ability of an individual to remain free.
I am all in favor of the Shaheen amendment. I am all in favor of the Moran amendment. Let's have a vote on those two amendments and on the amendment that I have proposed, an amendment that is limited and an amendment, I should note here, that would not foreclose the ability of this body down the road to identify the changed circumstances of the sort that some of my colleagues have referred to. It simply says that if the government is going to do this, there has to be a plain statement, a clear statement; that it has to do so expressly; that Congress must expressly authorize this kind of action either in a declaration of war or an authorization for the use of military force. I don't think that is too much to ask, especially given the types of constitutional protections we are dealing with.
If, in fact, we are going to call the American homeland--if, in fact, we are going to call the territorial jurisdiction of the United States of America part of the battlefield, ought we not to have a declaration of war, an authorization for use of military force that identifies it as such? I mean, after all, the precedents that we are talking about, the precedents upon which this theory is based are premised on this idea that you have enemy combatants who become part of an enemy's fighting force, as was the case of Ex parte Quirin, where you had American citizens going over to Germany, putting on a German uniform, and fighting for the Germans. That was part of that war. They were enemy combatants on the battlefield.
There was Ex parte Milligan, where you had Confederate rebel soldiers who were enemy combatants on the battlefield fighting against the United States. So if we are willing to do that, we need a declaration of war. We need an authorization for the use of military force that states so expressly. That is the sole purpose of my amendment. I don't think that is unreasonable. In fact, I think that is necessary.
So I would like to get this done. I would like to get this done. We can get this done today. Let's have votes on all three amendments.
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