National Defense Authorization Act for Fiscal Year 2014

Floor Speech

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Mr. NADLER. Mr. Chairman, I rise in opposition to this amendment. Mr. Goodlatte and Chairman Smith and I are in agreement, I think, on the goal, though I think the three of us mutually disagree on elements of this amendment.

The amendment, while intended to enhance protections for U.S. citizens, in fact does the opposite. Right now, Americans on U.S. soil cannot be detained indefinitely without charge or trial. Rather than affirming this fundamental principle, the amendment implicitly authorizes the military to detain Americans on U.S. soil indefinitely by premising its protection on the mistaken assertion that the AUMF, the Authorization for Military Force, allows such detention--which I disagree with Chairman Smith, it does not. No such authority exists.

The AUMF does not grant this authority, and we should do nothing to suggest otherwise. In fact, we should be taking clear and immediate steps to ban indefinite military detention altogether. The Smith-Gibson amendment, which I support, takes a good first step in doing this by prohibiting the detention without charge of any person arrested or detained in the United States.

We should also pass my No Detention Without Charge Act, which would cure the problem altogether by preventing indefinite detention without charge or trial for all persons in U.S. custody, at home or overseas.

Secondly, this amendment would create greater uncertainty in habeas corpus cases and raises significant constitutional concerns. The amendment seeks to raise the burden on the U.S. Government to prove that a U.S. citizen is an unprivileged enemy belligerent. But that is not the same as requiring proof that the person is being lawfully detained, which is what habeas corpus is designed to do.

The creation of a two-tiered habeas system with one set of standards for U.S. citizens and different, lesser standards for noncitizens raises very troubling constitutional concerns. Our Constitution simply does not permit us to permit greater basic due process rights based solely on citizenship.

Although the chairman, Mr. Goodlatte, is right in citing the case that he cited, he talked about connection with the United States. Someone who is in the United States--physically in the United States--and is arrested there has the same constitutional Fourth Amendment protections as an American citizen.

Any changes to habeas protections should be studied carefully through regular order, not through rushed attachments to the defense authorization act. Passing this amendment would be a serious and dangerous mistake. I urge my colleagues to vote against it.

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Mr. NADLER. I thank the gentleman for yielding.

I rise in strong support of the Smith-Gibson amendment.

When we considered the fiscal year 2012 version of this bill, I argued in opposition to sections 1021 and 1022. I argued then--and I still believe now--that these provisions go far beyond the AUMF to suggest that the President has the authority to detain even U.S. citizens without charge indefinitely. The AUMF gives the President no such authority.

Clearly, we must roll back these provisions. The Smith-Gibson amendment prohibits the detention without charge of any person arrested or detained in the United States, and it is the first step towards restoring the due process of law. It is a good first step, but the scope is limited to U.S. soil and to the present AUMF. We should do more.

That's why I've introduced the No Detention Without Charge Act, which would apply to all persons in U.S. custody--at home and overseas--and to all Authorizations to Use Military Force--present and future. It not only prohibits detention without charge of people arrested in the United States, but it also prohibits the detention of any person anywhere, except to the extent permitted by the Constitution and the law of war, and it restores a meaningful right of action for detainees to challenge the legality of the detentions.

The notion that the United States ought to conduct itself according to the Constitution and the law of war should not be controversial. Smith-Gibson takes the first step, and I have proposed the next, which is towards affirming our values and securing our liberty. This clarifies that the AUMF does not give any President the authority to detain people without the due process of law and to detain them indefinitely.

I urge my colleagues to support this amendment and to sign on as cosponsors of my bill but to, right now, support the Smith-Gibson amendment.

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