[Congressional Record Volume 151, Number 23 (Thursday, March 3, 2005)]
[Extensions of Remarks]
[Page E351]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         INTRODUCTION OF THE DETENTION OF ENEMY COMBATANTS ACT

                                 ______
                                 

                          HON. ADAM B. SCHIFF

                             of california

                    in the house of representatives

                        Thursday, March 3, 2005

  Mr. SCHIFF. Mr. Speaker, today I am reintroducing the Detention of 
Enemy Combatants Act. This legislation authorizes the detainment of 
``enemy combatants'' in the war on terrorism while guaranteeing that 
they are granted timely access to legal counsel and judicial review.
  Earlier this week, a federal judge in South Carolina ruled that the 
Administration lacks statutory and constitutional authority to 
indefinitely imprison without criminal charges a U.S. citizen 
designated as an ``enemy combatant.'' Last month, another federal judge 
ruled that holding individuals indefinitely as ``enemy combatants'' 
unconstitutionally violates their right to due process and that some 
foreign terror suspects held in Guantanamo Bay can challenge their 
confinement in U.S. courts. That ruling came some eight months after 
the U.S. Supreme Court held in Hamdi that while the President has the 
authority to detain ``enemy combatants'' captured in the battlefield, 
detainees are entitled to lawyers and the chance to challenge their 
imprisonment.
  The Court, however, left a host of unanswered questions that Congress 
should seek to resolve. Justice Scalia, in his dissent, called on 
Congress to act, noting: ``I frankly do not know whether these tools 
are sufficient to meet the Government's security needs, including the 
need to obtain intelligence through interrogation. It is far beyond my 
competence, or the Court's competence, to determine that. But it is not 
beyond Congress's.''
  The Supreme Court also side-stepped the case of Jose Padilla and will 
likely be forced to speak again on these issues should a vacuum still 
exist due to congressional inaction. Until then, enemy combatant law 
will continue to be written in a piecemeal fashion through a series of 
conflicting lower court decisions.
  I believe that the federal government must have the authority to 
detain terrorists as ``enemy combatants'' to protect the public, gather 
intelligence and safeguard national security. But we must also ensure 
that the accused are afforded the due-process rights guaranteed under 
the Constitution. I am particularly concerned with the detention of 
U.S. citizens and lawful residents.
  In the last Congress, I introduced the Detention of Enemy Combatants 
Act to authorize the government to detain suspected members or 
associates of al Qaeda, but requiring that U.S. citizen detainees be 
granted access to legal counsel and due-process hearings. The bill 
called for standards to be set for such detentions that distinguish 
these cases from other Americans held for trial on criminal charges.
  While we must grant broad latitude to our armed forces when it comes 
to protecting national security, American citizens should not be held 
indefinitely upon the sole determination of one branch of government 
without access to counsel or proper judicial review of those 
determinations.
  These same concerns have even been echoed by Michael Chertoff, the 
newly-confirmed Secretary of the Department of Homeland Security and 
former head of the Criminal Division at the Department of Justice, who 
has suggested that policymakers now ``may need to think more 
systematically and universally about the issue of combatants'' and to 
``debate a long-term and sustainable architecture for the process of 
determining when, why, and for how long someone may be detained as an 
enemy combatant, and what judicial review should be available.''
  In addition, Viet Dinh, former head of the Justice Department's 
Office of Legal Policy has called ``unsustainable'' the government's 
current insistence on detentions without meaningful oversight or any 
sort of due process.
  I am currently examining ways to heed this invitation for 
congressional action and hope to introduce a piece of legislation in 
the near future that establishes specific standards and procedures 
under which terrorism suspects may be detained as enemy combatants and 
provided due process.
  In the interim, I am reintroducing this piece of legislation in the 
hope that Congress and the Administration will finally work together to 
create a workable framework to deal with these matters of significant 
constitutional import. In addition, I have renewed my call for 
congressional hearings to examine proposals for congressional action in 
this area. After the shameful internment of Japanese Americans during 
World War II, we must be vigilant to protect against the government's 
decision to detain, perhaps indefinitely, any American without adequate 
review of the basis of its decision.

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