National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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AMENDMENT NO. 1126

Mr. LEE. Madam President, I rise today to speak in support of amendment No. 1126 to the current pending legislation. The purpose of this amendment is to make clear that the United States shall not detain for an indefinite period U.S. citizens in military custody.

I understand this has been the subject of a lot of debate. I also understand this would be a break not only with the current pending legislation but also with current practice, based on Supreme Court precedent and lower court precedent that some have interpreted to deem this a constitutionally permissible practice.

It has often been suggested by several of my colleagues that it is the province of the Supreme Court to interpret the Constitution, and that statement is absolutely correct as far as it goes. But it is not the beginning of the analysis and the end of the analysis.

We, as Senators, independently have an obligation, consistent with and required by our oath to the Constitution--which I took just a few months ago just a few feet from where I stand now--to uphold the Constitution of the United States. That means doing more than simply the full extent of whatever the courts will tolerate.

In this instance, what we are talking about is the right of the U.S. military to detain indefinitely, without trial, a U.S. citizen, simply on the basis that person has been deemed an enemy combatant.

Now, there is a real slippery slope problem here, and it is the very kind of slippery slope problem for which we have protections such as the fifth amendment and the sixth amendment. You see, under the fifth amendment, a person cannot be held for an infamous crime unless they have been subjected to a process whereby a grand jury indictment has been issued. A person cannot be held and tried for a crime without having counsel made available to them and without the opportunity for a speedy trial in front of a jury of the peers of the accused.

We can scarcely afford as Americans to surrender these fundamental civil liberties for which wars have been fought, for which the founding era, the founding generation fought so nobly against our mother country to establish and thereafter to protect. We have to support these liberties. I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them. These people, as U.S. citizens, are entitled to a grand jury indictment to the extent they are being held for an infamous crime. They are also entitled to a jury trial in front of their peers and to counsel.

We cannot, for the sake of convenience, surrender these important liberties. I am not willing to do that. That is why I support this amendment, amendment No. 1126, to the pending legislation. I encourage each of my colleagues to do so.

I want to point out that yesterday I voted against what became known as the Udall amendment. I did so in part because I do not believe that fixed the problem I am talking about. The Udall amendment did not even purport to address current practice or the policies as they have been established in recent years: that this kind of detention is in some circumstances acceptable. It called for a study and it eliminated certain provisions in the proposed legislation, but it did not fix the underlying problem.

This Feinstein amendment, amendment No. 1126, does fix that. That is why I support it. I encourage each of my colleagues to do the same.

When we take an oath to the U.S. Constitution--to uphold it, to support it, to protect it, to defend it--we are doing more than simply agreeing to do whatever the courts will tolerate. We are taking an oath to the principles embodied in this 224-year-old document that has fostered the greatest civilization the world has ever known.

Thank you, Madam President.

I suggest the absence of a quorum.

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