[Congressional Record Volume 148, Number 80 (Monday, June 17, 2002)]
[Extensions of Remarks]
[Pages E1072-E1073]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


   ``FIGHTING TERRORISM DOES NOT MEAN IGNORING OUR OWN CONSTITUTION''

                                 ______
                                 

                            HON BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                         Monday, June 17, 2002

  Mr. FRANK. Mr. Speaker, recently we have learned of two cases where 
American citizens have been arrested and subjected to indefinite 
imprisonment with no prospect of their being allowed to appear before a 
judge, and contest the basis on which they have been imprisoned. I 
believe this is a grave error. There is virtually unanimous support in 
the Congress and in the country for the fight against terrorism. And we 
realize that this means stepped up law enforcement in many respects, 
but it should not mean that the Constitution exists only at the option 
of the Justice Department. Imprisoning people who are legally here in 
the U.S. for indefinite periods with no provisions for there being any 
adjudication of the grounds of their imprisonment is unacceptable.

[[Page E1073]]

  On Thursday, June 13 the Washington Post editorial entitled Detaining 
Americans (Cont'd) addressed this issue in a very thoughtful and cogent 
fashion. The concluding paragraph of that editorial is an important one 
that deserves special emphasis:

       The idea of indefinite detentions of Americans who have not 
     been convicted of any crime is alarming under any 
     circumstance. Without the meaningful supervision of the 
     courts, it is a dangerous overreach of presidential power. If 
     such a thing were happening in any other country, Americans 
     would know exactly what to call it.

  Mr. Speaker, because this is one of the most important issues now 
facing us--figuring out how best to defend ourselves in ways thoroughly 
consistent with our Constitional values--I ask that the editorial be 
printed here.

               [From the Washington Post, June 13, 2002]

                      Detaining Americans (Cont'd)

       The Bush administration is at least candid in its 
     description of its detention of Jose Padilla, the American 
     citizen arrested in Chicago on suspicion of being part of an 
     al Qaeda plot to set off a dirty bomb. ``We are not 
     interested in trying him at the moment or punishing him at 
     the moment,'' said Defense Secretary Donald Rumsfeld. ``We 
     are interested in finding out what he knows.'' President Bush 
     described the Brooklyn native as ``a threat to the country 
     [who] is now off the street, where he should be.'' If Mr. 
     Padilla is, as Mr. Bush said, ``a bad guy,'' then it's a 
     relief to have him behind bars. That said, we had thought 
     that it took more than the determination by the president 
     that someone was a ``threat to the country'' before an 
     American could simply disappear and be locked up without 
     charge or trial or prospect of release.
       The government may be right that an American citizen 
     working with al Qaeda can be held as an enemy combatant for 
     the duration of the war on terrorism. As a legal matter, the 
     contention has precedent in prior conflicts, though how to 
     apply those precedents during an undeclared war against a 
     non-state actor when the administration itself seems to 
     regard the conflict as never-ending is no easy question. 
     International law permits the detention of captured enemy 
     soldiers, even those who have committed no crimes, and it 
     would be reckless of the government simply to release people 
     bent on detonating dirty bombs. The question is not whether 
     the government can detain an enemy combatant bent on doing 
     America great harm but whether it can designate anyone it 
     chooses as such a person without meaningful review.
       The government's position would be easier to swallow were 
     it not actively seeking to frustrate judicial review of the 
     president's designations. When the government detains a 
     citizen as an enemy combatant, that person must be permitted 
     to consult with counsel and challenge the lawfulness of the 
     detention in court. Without that, every citizen is at the 
     mercy of presidential whim. Formally, the government 
     recognizes that federal courts have jurisdiction to consider 
     the legality of detentions--including military detentions--in 
     this country. Yet in Mr. Padilla's case--as in that of Yaser 
     Esam Hamdi, another detainee with likely citizenship--it has 
     thrown procedural obstacles in the way of efforts to 
     adjudicate detentions. After whisking Mr. Padilla to military 
     custody in South Carolina from civilian custody in New York, 
     it has prevented him from consulting with the lawyer who had 
     been appointed to represent him. Similarly, the government 
     refused to let Mr. Hamdi meet with a federal public defender 
     interested in representing him. And when that lawyer sought 
     to file a case on his behalf anyway, the government then 
     contended in a Kafkaesque twist that, having had no prior 
     relationship with Mr. Hamdi, the lawyer could not do so.
       The idea of indefinite detentions of Americans who have not 
     been convicted of any crime is alarming under any 
     circumstances. Without the meaningful supervision of the 
     courts, it is a dangerous overreach of presidential power. If 
     such a thing were happening in any other country, Americans 
     would know exactly what to call it.

     

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