National Defense Authorization Act for Fiscal Year 2019

Floor Speech

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Mr. LEE. Madam President, I appreciate the efforts made by my friend and distinguished colleague, the Senator from South Carolina. I wish to speak concerning the purpose for my making this request. I do so with great respect for this body, for its customs, its traditions, its rules, and for each of its Members.

At the same time, it is imperative that we point out what is happening. We have a bill--one of the most consequential pieces of legislation we vote on each year--the National Defense Authorization Act. We have been effectively shut out of a meaningful amendment process, one that has historically marked this body as one of its distinguishing characteristics; one that has historically helped this body to refer to itself as the world's greatest deliberative legislative body.

We have tested that in recent months and years as Members have started objecting with increasing frequency to anyone getting a vote on any amendment they don't like, that they object to. The amendment at issue is based on a bipartisan piece of legislation called the Due Process Guarantee Act. I am the lead sponsor, along with my lead cosponsor, the senior Senator from California, Mrs. Feinstein.

The purpose of this amendment is simple. It is to make sure the U.S. Government has no authority and claims no authority to indefinitely detain U.S. citizens apprehended on U.S. soil. Most people listening to this--anyone listening to it--would think, why on Earth would we need legislation stating something so obvious? The fact is, we shouldn't.

It is the inexorable command of the Fourth, Fifth, and Sixth Amendments, not to mention other statutory and constitutional protections, that the indefinite detention without charge, without trial, without access to a jury, without access to counsel--these kinds of things are anathema to our way of life, to our constitutional system of laws.

Why then do we need this amendment? Well, about 7 years ago, toward the end of 2011, when Congress was considering, then ultimately passed, the National Defense Authorization Act for Fiscal Year 2012, Congress included in that legislation a provision, section 2021 of that bill, that purported to give the U.S. Government that authority in certain circumstances.

In other words, there were circumstances based on the accusations against you, as an American citizen, that you could be apprehended on U.S. soil and held indefinitely without charge or trial. This violates everything we know about our system of government. It violates everything we know about the laws of any decent nation--any nation that recognizes the fundamental, essentially eternal dignity of the human soul. This is not something we do in the United States.

I raised objections to it at the time. I tried to fix it at the time. It didn't happen. The following year, late in 2012, when we were addressing the National Defense Authorization Act for Fiscal Year 2013, toward the end of 2012, I introduced an amendment that is substantially identical to the one I am trying to seek a vote on today. It passed by a bipartisan supermajority vote. There were 67 Members who voted for this. That is more than a majority; more than the three-fifths it needed to close debate. In fact, it is equal to the sum required when you are proposing a constitutional amendment out of this body or trying to override a Presidential veto. That is what we had.

For reasons that escape me, that provision was removed in the Conference Committee when the Conference Committee was trying to recognize competing House and Senate versions of the bill. In the subsequent 6 years, I tried repeatedly to get a vote on this amendment again, recognizing that it passed overwhelmingly and that it was inexplicably removed from the bill during the Conference Committee. Promise after promise has been made to help me get a vote on that amendment, which ever since hasn't panned out.

We have an opportunity to consider it here. Yesterday, something interesting happened. Yesterday, there was a motion to table this amendment. In other words, there were some Members of this body who didn't want to consider it at all so they made a motion to table. When you table something in the Senate, you are setting it aside, setting it on the table, saying: We are not going to address that. Do you know what happened? There were 68 people who voted against that motion to table. In other words, 68 people voted that we should have a vote on this amendment. That is more than a majority, more than the three- fifths or 60 needed to close debate. That is more than the threshold required to propose a constitutional amendment or override a Presidential veto.

Why then are we not discussing this? Why are we not voting on it so we have a number of amendments? You may have heard me reciting a series of about three dozen four-digit numbers, each referring to a separate amendment being proposed for a so-called managers' package.

If we are going to further amend this bill, we need to consider those with a vote, and we need a vote on my amendment. Yesterday, 68 Members of this body agreed that we should be considering this.

Ask any American you know--your friends, your neighbors, I don't care what State they live in, what party they identify with, where they go to church or synagogue, whether they are believers in God, regardless of their background, their socioeconomic status, what they do for a living--you ask people from almost any background, and I can almost guarantee you they are going to call this a no-brainer.

Why would we not want to remove a pernicious provision from a piece of Federal law that passed a few years ago, purporting to authorize the Federal Government to indefinitely detain U.S. citizens, without charge or trial or jury or counsel, based merely on the nature of the allegations against them? This is wrong, and the wrongness of that provision, which could be corrected by my amendment, is compounded still by the refusal of this body, by the refusal of 1 Member of this body, 1 Member out of 100, to allow us to get a vote on this. We must vote on this.

If we are going to lay claim to any type of status as the world's greatest deliberative legislative body, we have to start voting on amendments again. We have steadily, sadly, tragically relinquished that right by acquiescence.

As of today, I say no more. It has to stop. Let us vote on this. We will continue to push this. The laws of the United States and the principles that govern the behavior of decent people everywhere dictate we should correct this error in the law.

I implore my colleagues, I implore my distinguished colleague, the senior Senator from South Carolina, let us vote on this amendment.

Thank you.

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