[Congressional Record Volume 157, Number 183 (Thursday, December 1, 2011)]
[Senate]
[Pages S8140-S8142]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         DEFENSE AUTHORIZATION

  Mr. MERKLEY. Mr. President, tonight, I voted against final passage of 
the Defense authorization bill, and I rise now to explain why I voted 
against it and the considerable concerns I have about the vast 
expansion of the powers of detention of American citizens that were 
contained in that bill.
  These provisions related to the detention of American citizens--
without the standard rights of the fifth and sixth amendment--have been 
an object of intense debate on the floor of the Senate over the last 
several days.
  As a Senator who has now been here 3 years, I can say unequivocally 
that this debate was extremely valuable. Folks came from both parties 
on both sides of this issue and shared their insights, both from their 
life experiences, from their scholarly knowledge of the law, and 
certainly from their philosophy, and I commend all who participated in 
that debate. I listened to a great deal of that debate on both sides. I 
thought this was extraordinarily important; issues surrounding our Bill 
of Rights and the rights of American citizens, protection from the 
abuse of power.
  Some came to this floor and said that essentially the detention 
provisions in this bill simply clarify existing law and will enhance 
our national security, and they did so with sincere hearts and sharp 
minds. Others came, equally sincere, equally learned, and argued the 
opposite side; that the detention provisions in this bill constitute a 
devastating circumvention of the fifth amendment right to due process 
and the sixth amendment right to a speedy trial by impartial jury, as 
well as a sixth amendment right to confront the witnesses against him 
or her. Maybe it is useful to take a look at what the fifth and sixth 
amendments actually say.

  One of the last clauses of the fifth amendment notes that:

       No person shall be deprived of life, liberty, or property 
     without due process of law.

  I think we all grow up in this country absolutely believing in this 
fundamental value that the government cannot take from you your life, 
your liberty or your property without the process of law.
  The sixth amendment notes that, in prosecutions, the accused shall 
enjoy the right to a speedy and public trial--and I emphasize public 
trial--by an impartial jury of the state. It goes on to note that the 
accused shall be able to confront the witnesses against him and to have 
the assistance of counsel. So these basic issues of speedy and public 
trial, an impartial jury, the assistance of counsel, and the ability to 
confront

[[Page S8141]]

the witnesses against you, all of these are contained in the sixth 
amendment and all relevant to this debate over detention.
  Most of this conversation is about a section of the bill called 
section 1031, subtitle D, and it is referenced subtitle D, ``Detainee 
Matters.'' I will just read the title of the section to give a sense of 
what this is all about.

       Section 1031. Affirmation of authority of the Armed Forces 
     of the United States to detain covered persons pursuant to 
     the authorization of the use of military force.

  It uses this fancy word ``covered persons,'' and it is what is 
referred to in everyday speech as enemy combatants. So section 1031 is 
about the ability of the Armed Forces to detain enemy combatants.
  The reason this is framed this way is that there is a historical 
exception under constitutional findings of the Supreme Court to 
amendment five and amendment six of the Constitution. That exception is 
that if an individual is fighting on the side of the enemy against the 
United States, they do not have the same rights because they are now an 
enemy combatant in time of war, and they can be detained for the 
duration of that conflict. This was adjudicated in World War II over 
individuals who assisted with sabotage in New York, and it was found 
that the standard rights of speedy public trial, trial by jury, right 
to counsel do not apply if you are an enemy combatant. Instead, you are 
put into the framework of a war setting to be treated as a member of 
the opposing army.
  So this exception has historically been extremely narrow. You are on 
the battlefield or you are directly working as a member of the enemy 
force against the United States. It should be extremely narrow, and it 
should be substantial hurdles for the State to be able to simply claim 
that you are an enemy combatant and thereby strip you of your fifth and 
sixth amendment rights.
  But what we have in this bill, in section 1031, is not this narrow 
set of provisions based on the historical understanding of an enemy 
combatant. Instead, we have a definition that says ``a person who was a 
part or substantially supported al-Qaida, the Taliban, or associated 
forces, engaged in hostilities against the U.S. or coalition partners, 
including any person who has committed a belligerent act or has 
directly supported such hostilities in aid of enemy forces.''
  On first reading, it may sound as if that individual is directly 
involved in combat, but listen to the words embedded in this. First of 
all, it says ``a part of,'' with no conception of what ``a part of'' 
means. Did you write one sympathetic e-mail in your lifetime? Does that 
make you ``a part of''? We have no standard here.
  ``Substantially supported'' is understood to mean material support, 
but no contingency for intent. If you donated money to a charity and 
that charity used it to support Taliban activities somewhere in the 
world or some other group that had an association with the Taliban, you 
have substantially supported, under this conversation.
  Then it says ``the U.S. or its coalition partners.'' Who are these 
coalition partners? What is the definition of that? A few weeks ago, 
you might have noticed in the news that there were a lot of protests 
going on in Bahrain. We have a military facility in Bahrain. Is Bahrain 
a coalition partner since we utilize a partnership with them to supply 
our forces in the Middle East? Yes, probably so, because there is no 
definition of ``coalition partner.'' With individuals who were standing 
up for human rights and got into a battle with police in a public 
square, they are engaging in a belligerent act against a coalition 
partner.
  I hope you can start to see that the standard understanding that has 
been constitutionally established over time is completely taken apart 
in this simple paragraph. That should be of grave concern to all 
Americans who care about our constitutional rights to a fair hearing.
  What happens when the government suspects you have done something? I 
want to take you to a case in Oregon. We had a case regarding an 
individual named Brandon Mayfield. Brandon Mayfield was born in Kansas. 
Brandon Mayfield got his law degree in Topeka, KS. Brandon Mayfield is 
an Army veteran. Brandon Mayfield is married with three children and 
lives with family in a Topeka suburb.
  Brandon Mayfield is a Muslim convert, and in 2004 FBI agents raided 
his law office, his home, and his family farm to collect evidence, 
believing he was a terror mastermind behind the Madrid bombings. The 
reason why is an FBI agent concluded that a partial fingerprint matched 
Brandon Mayfield's fingerprint. Under this framework, the government 
now labels him an enemy combatant, and what right does Brandon Mayfield 
have to contest this? Basically, no rights. The law provides only that 
there will be a hearing; that the rules of the hearing will be set by 
the executive branch--by the President, if you will; that the attorney 
will be assigned by the executive branch; that the rules of evidence 
will be determined by the executive branch; that this hearing will 
occur sometime--but when? We don't know. There is no right to a speedy 
trial, there is no commitment that it will be public; in other words, 
no protections from the force of the State whatsoever--completely the 
opposite.
  This gateway around the fifth and sixth amendments is very loosely 
defined rather than tightly defined. The entire process by which an 
individual might try to say ``You are wrong, that was not me, I was not 
there'' is extraordinarily without powers for the defendant.
  I find that outrageous because once that hearing occurs, possibly in 
secret without an attorney that the individual would like to employ, 
without rights to evidence, without an ability to confront the 
witnesses against him or her--without any of these rights, that person 
can now be locked away forever under this law. There is no right to 
appeal, no right to contest, and therefore this completely works 
against the principles we hold dear. Those principles were set up--the 
fifth amendment and sixth amendments were set up to defend us against 
the overreach of an executive branch. Yet tonight we have stripped away 
those protections.
  A lot of the conversation over the last few days has noted that there 
was a historical gate through which you did not have the fifth and 
sixth amendment but also recognized how narrow that was. What we have 
done today changes that.
  I hope this continues to receive substantial attention. I would have 
hoped there would be hearings about this phenomenal change in U.S. law 
adopted tonight because this sort of thing should not be done lightly. 
It should not be placed at the last second into a Defense authorization 
bill without extensive consideration, extensive testimony by experts on 
all sides of this issue.
  There is another feature of this bill that I think deserves 
attention, and that is that it creates a presumption for certain types 
of crimes to be tried in military tribunals rather than in civilian 
courts. Many of my colleagues are much more familiar with this than I 
am, but they have come to the floor and noted that 300 individuals who 
have been accused of terrorist-related crimes have been tried in 
civilian courts and found guilty, versus 6 in military courts. They 
have noted that because the FBI is immersed in the process of getting 
evidence out of individuals, they are masters at it, which helps to 
explain these 300 convictions versus the 6 in military courts. But the 
law tonight creates a presumption that they can be tried in a military 
court under an argument that several of my colleagues have made that 
simply the military is better at it. But there is not one shred of 
evidence brought that the military is better and lots of evidence about 
the sophisticated, experienced, systematic, and successful efforts of 
the FBI.
  Mr. President, I would like to conclude by summarizing that all that 
we hold dear as Americans in this Constitution about our fair rights as 
citizens has been trampled on tonight. This has happened twice before 
in this Chamber, and the Supreme Court has thrown it out twice before. 
I hope they will find a case that this will put before the Court again 
because it is the responsibility of the Court to keep taking us back to 
this document, this Constitution, when we waver from the course it lays 
out. There should not be a situation that the government can simply 
assert that the President, no matter what President it is--this

[[Page S8142]]

President or any future President, whether it be President Bush, 
whether it be President Obama, whether it be the next President of the 
United States or one of five Presidencies into the future--they should 
not be able to say: You, Joe American, I am calling you an enemy 
combatant. I am locking you up. I am assigning your defender--your 
court attorney if you will. I am deciding the rules of evidence. I am 
deciding if it is going to be secret. And after I conclude that there 
is enough evidence because of a partial fingerprint, I am locking you 
up forever, and there is not a damned thing you can do about it.
  Brandon Mayfield was locked up, and he might have been locked up 
forever if this law had been in place. But the FBI made a mistake. The 
FBI completely botched the fingerprint comparison. It was Spain that 
brought it to our attention. Spain kept saying: America, you have the 
wrong guy. America, you have the wrong fingerprint. And it was Spain 
that found the right match, and it was finally our own system that 
said: Yes, we made a mistake, and we are setting Brandon Mayfield free. 
But under what was done tonight, he may never have seen the light of 
day outside of his prison. That is not right. It is not, absolutely not 
a contributor to the security of this country to strip away fair rights 
of due process, to summon the evidence, to confront your accusers and 
make sure that a just decision occurs.
  Mr. President, I yield the floor.

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