Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2005
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES
APPROPRIATIONS ACT, 2005 -- (House of Representatives - July 08, 2004)
The SPEAKER pro tempore. Pursuant to House Resolution 701 and rule XVIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the further consideration of the bill, H.R. 4754.
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AMENDMENT NO. 25 OFFERED BY MR. SHERMAN
Mr. SHERMAN. Mr. Chairman, I offer an amendment.
The CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 25 offered by Mr. Sherman:
At the end of the bill (before the short title), insert the following:
TITLE VIII-ADDITIONAL GENERAL PROVISIONS
SEC. 801. None of the funds made available in this Act may be used to detain for more than 30 days a person, apprehended on United States territory, solely because that person is classified as an enemy combatant.
SEC. 802. None of the funds made available in this Act may be used to defend in court the detention for more than 30 days of a person, apprehended on United States territory, solely because that person is classified as an enemy combatant.
SEC. 803. None of the funds made available in this Act may be used to classify any person as an enemy combatant if that person is apprehended on United States territory.
The CHAIRMAN. All points of order are reserved. Pursuant to the order of the House of yesterday, the gentleman from California (Mr. Sherman) and a Member opposed each will control 10 minutes.
The Chair recognizes the gentleman from California (Mr. Sherman).
(Mr. SHERMAN asked and was given permission to revise and extend his remarks.)
Mr. SHERMAN. Mr. Chairman, I yield myself 5 minutes.
As I indicated, I have two amendments that I would hope that those who wish to speak on either of them would be on the way to this floor.
My first amendment deals with the enemy combatant doctrine, and what the bill does is that it provides that none of the funds in this act can be used to detain for more than 30 days anyone apprehended on U.S. territory solely because that person is identified as an enemy combatant. That is to say, detention of over 30 days of anyone apprehended in the United States would be done under our regular criminal law.
Now, first let us talk about what this amendment is not. This amendment does not try to protect our privacy. There will be incursions into our privacy in this war on terror, but it is one thing to say the government may know something about what we are doing or reading. It is another thing to say that the executive branch alone can incarcerate any of us permanently, and that is the wrong that this amendment addresses.
Second, this amendment is not about those apprehended on foreign battlefields or on any foreign territory. It addresses only those apprehended on U.S. territory.
Third, this amendment does not authorize any Federal agency to do anything. It is a limitation amendment, and so by its terms, it prevents the use of funds to detain someone for over 30 days. That does not authorize anyone to detain someone for 29 days. This is an additional limitation on the expenditure of funds.
Now, the enemy combatant doctrine is the most dangerous doctrine propounded by anyone in this country. What does our criminal law do, and how does it work? First, Congress defines what is a crime. Then the judicial branch determines whether facts have occurred so that the defendant is guilty of that crime.
What is the enemy combatant doctrine? The administration vaguely defines what might be the crime, and that is subject to change any time they want, and the administration, whoever that might be, determines whether facts have occurred that cause someone to have committed that crime or that wrong.
So is someone an enemy combatant if they plant a bomb? Are they an enemy combatant if they applaud a bomb planter? Are they an enemy combatant if they defend someone who applauds planting a bomb? We do not know, but we do know that if you are classified as an enemy combatant, you can be incarcerated immediately, permanently, or at least until the end of the war on terror, which I would say means the same as permanently.
Now, is someone a bomb planter, or is it a case of mistaken identity? Under the enemy combatant doctrine, the courts do not determine whether a particular individual planted a bomb. The executive branch determines, locks the person up permanently or for as long as they think that person is dangerous, no matter how mistaken they might be.
Now, the courts have not solved this problem. We do have a recent court opinion, actually three of them, but in dealing with this issue, we have not a majority opinion, but a plurality opinion. So the court has not spoken with the majority.
And on the key issues involved that I am speaking about, they remanded the case to a lower court.
It is time now for Congress to do all it can to reign in this doctrine of enemy combatants. To do otherwise, to be silent, as we have been for over a year, is to acquiesce in a new doctrine of criminal law where the executive can arrest anyone, after that arrest determine what it is that makes up the definition of enemy combatant, and then decide what facts have occurred, subject to no judicial review, as to whether that person has, in fact, violated those wrongs as previously determined by the administration. This is indeed a dangerous doctrine.
Today I do not know whether it is being misused, but if we do not act, I assure you it will be misused in the future.
Someone will be erroneously accused of bomb-making by some local enemy of theirs. The executive will have detained that person for as long as they think they are dangerous and for as long as the war on terrorism continues. That could be for a long time.
Tomorrow those who simply loudly protest the war on terrorism will be called enemy combatants.
Mr. Chairman, I reserve the balance of my time.
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Mr. SHERMAN. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, what we use to protect American citizens is our criminal law. If bin Laden arrives in the United States, he has already been indicted. If someone smashes an airplane into a building, I suggest they be arrested for murder.
What defends us from terrorists; how do we deal with mass murderers? We arrest them.
Why do we need instead to use this new doctrine of enemy combatant? To say that our only choice is to abdicate to the executive branch determining who has committed a wrong and what wrongs justify incarceration, or we have to incarcerate no one ignores the criminal law as we know it.
Yes, those who commit crimes should be arrested and detained, not under the doctrine of enemy combatancy, but under the doctrine of criminal law.
Mr. Chairman, I yield 1 ½ minutes to the gentleman from Washington (Mr. Inslee).
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Mr. SHERMAN. Mr. Chairman, I yield myself such time as I may consume.
The gentleman assumes that we have no criminal law. He suggests that if a bomber is caught red-handed, we cannot charge him with being a bomber. We cannot arrest him. We cannot indict him. We cannot try him. We either have to release him, or we have to have this new doctrine of enemy combatants. I suggest if we catch a bomber, we arrest him.
He suggests a doctrine in which anyone could be called an enemy combatant for doing whatever the administration thinks is harmful to the United States and incarcerated forever, and that the only alternative is to release all terrorists to swim amongst us.
What a preposterous alternative. What an attempt to put in the hands of the executive branch the right to arrest anyone and permanently detain them and to say that the only alternative is to release Mohammad Atta.
Mr. Chairman, I yield 1 ½ minutes to the gentleman from New York (Mr. Nadler).
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Mr. SHERMAN. Mr. Chairman, I ask unanimous consent that each side be given an additional 15 seconds.
The CHAIRMAN. Is there objection to the request of the gentleman from California?
There was no objection.
Mr. SHERMAN. Mr. Chairman, I yield 15 seconds to the gentleman from New York (Mr. Nadler).