[Congressional Record Volume 150, Number 100 (Monday, July 19, 2004)]
[Extensions of Remarks]
[Page E1416]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             DETENTION OF AMERICAN CITIZENS AND FOREIGNERS

                                 ______
                                 

                       HON. JANICE D. SCHAKOWSKY

                              of illinois

                    in the house of representatives

                         Monday, July 19, 2004

  Ms. SCHAKOWSKY. Mr. Speaker, I commend to the attention of my 
colleagues the text of an article written by former Congressman Abner 
Mikva, who also has an extremely distinguished legal career history, 
which appeared in the July 16 edition of the Washington Post. I 
strongly agree with the concerns Mr. Mikva expresses in this article. 
I, too, believe the Bush Administration has gone dangerously too far in 
its detention of American citizens and foreigners. I share the hope 
that this President will return to the traditions that have made our 
democracy strong.

               [From the Washington Post, July 16, 2004]

                       Dangerous Executive Power

                            (By Abner Mikva)

       In 1971, along with the late Rep. Spark Matsunaga and 
     others in the House of Representatives, I sponsored the Non-
     Detention Act, which states: ``No citizen shall be imprisoned 
     or otherwise detained by the United States except pursuant to 
     an Act of Congress.''
       This simple provision of law has served as a bulwark 
     against the United States' ever again establishing internment 
     camps for citizens--as it did during World War II--without 
     the acquiescence of Congress. It also stilled the concern 
     occasioned by a McCarthy-era statute that authorized some 
     camps (which were never opened) to hold those engaging in 
     riot or insurrection. The purpose of the Non-Detention Act 
     was clear: to prevent the executive from detaining U.S. 
     citizens without explicit statutory authority.
       Recently the Supreme Court considered the Non-Detention Act 
     in the case of Yaser Esam Hamdi, a U.S. citizen taken 
     prisoner in Afghanistan while allegedly fighting for 
     the Taliban. Justice Sandra Day O'Connor wrote that ``a 
     state of war is not a blank check for the President when 
     it comes to the rights of the Nation's citizens.''
       But did an act passed by Congress shortly after Sept. 11, 
     2001, provide the President with the statutory authorization 
     to detain U.S. citizens that was required under the Non-
     Detention Act?
       Justice David Souter stated that the post-Sept. 11 law--the 
     Authorization for Use of Military Force--is ``fairly read to 
     authorize the use of armies and weapons, whether against 
     other armies or individual terrorists.'' But this act never 
     uses the word ``detention,'' and, Souter wrote, there is ``no 
     reason to think Congress might have perceived any need to 
     augment Executive power to deal with dangerous citizens 
     within the United States, given the well-stocked statutory 
     arsenal of defined criminal offenses covering the gamut of 
     actions that a citizen sympathetic to terrorists might 
     commit.''
       Although Congress gave the president the power to use 
     military measures to fight terrorism, it did not strip U.S. 
     citizens accused of terrorist activities of the protections 
     of citizenship. U.S. citizens accused of involvement in 
     terrorist activities should be charged with a specific crime 
     or released--not held indefinitely.
       The lesson of history is that if Congress is going to 
     authorize the detention of American citizens for indefinite 
     periods, it needs to do so directly and intentionally, so 
     that it can be held accountable. Why? Because executive 
     detention is a dangerous power that otherwise can too easily 
     be abused, as the Japanese American detention camps showed in 
     World War II.
       Our more recent history shows that many are being detained 
     based on suspicion of involvement in a terrorist conspiracy. 
     Some were released after a period of detention, without any 
     charges being filed. Others, such as Hamdi or a Chicago 
     suspect named Jose Padilla, accused of plotting to detonate a 
     ``dirty bomb,'' are still being held. Today, after the Hamdi 
     decision, such persons have limited right to access to 
     counsel and some ability to challenge in court the factual 
     determination of whether they can be deemed ``enemy 
     combatants.'' But they lack the basic right to know the 
     charges against them or to receive a host of assurances of 
     due process available even to a U.S. citizen charged with 
     treason.
       The principle at the heart of the Non-Detention Act was 
     affirmed by Justice Antonin Scalia, who wrote (with Justice 
     John Paul Stevens's support): ``The very core of liberty 
     secured by our Anglo-Saxon system of separated powers has 
     been freedom from indefinite imprisonment at the will of the 
     Executive.'' As O'Connor observed, ``It is during our most 
     challenging and uncertain moments that our Nation's 
     commitment to due process is most severely tested; and it is 
     in those times that we must preserve our commitment at home 
     to the principles for which we fight abroad.''
       Thirty-three years ago Congress expressed the same vision 
     with the plain words of the Non-Detention Act. The Supreme 
     Court has left it to the lower courts to decide on a case-by-
     case basis whether the Authorization for Use of Military 
     Force or future congressional enactments satisfy the 
     requirements of the Non-Detention Act and give the executive 
     branch the right to detain American citizens. I hope the 
     courts will set the bar high and prohibit the detention of 
     U.S. citizens by the executive unless Congress specifically 
     authorizes such detention. And I hope Congress will take care 
     in the future to avoid the kind of ambiguity the Supreme 
     Court found to exist in the military force act. Finally, I 
     hope this president will return to the traditions that have 
     made our democracy strong and realize that if he believes he 
     needs additional powers to fight terrorism, he should make 
     that case to Congress and the people.

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