[Congressional Record Volume 158, Number 72 (Friday, May 18, 2012)]
[House]
[Pages H3150-H3155]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AUTHORIZATION FOR USE OF MILITARY FORCE
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 5, 2011, the gentleman from Texas (Mr. Gohmert) is recognized
for 60 minutes as the designee of the majority leader.
Mr. GOHMERT. Mr. Speaker, it's been quite an interesting day.
Apparently it's already been misinterpreted by some in the media. I
hope that, though so many publications have had to cut their research
budgets and cut their staffing budgets, I hope that those that still
are blessed to work for journalistic institutions will do their proper
homework and have a better understanding about the Gohmert-Landry-
Rigell amendment that passed today and the effect that it has on the
underlying NDAA and, more particularly, the Authorization for Use of
Military Force that was passed after
9/11 by both houses of Congress.
I wasn't here, nor were any of the five cosponsors. Let's see: Mr.
Duncan, freshman; Mr. Barletta, freshman. They weren't here, nor were
Mr. Landry or Mr. Rigell. So besides me, we had four freshmen on the
Gohmert-Landry-Rigell-Duncan-Barletta amendment.
I felt compelled to make my amendment to deal with an issue that was
raised--not in the National Defense Authorization Act that was passed
some months back. Some people failed to understand, really, the NDAA
that was passed previously did not give the President the power to
indefinitely detain American citizens. And as we understand, a judge
has ruled recently that any interpretation that it gave the President
that power was unconstitutional. I don't know how that will come out.
But I do know that after we were attacked in the worst attack on
American soil ever, the country--I recall, I was a judge at the time--
the country was in a great deal of chaos. Planes were ordered not to
take off all over the country. Those that were coming in couldn't come
in. We had American citizens stranded at airports around the world.
But what's worse, we had over 3,000 Americans who were dead, done by
people who believed their radical interpretation of Islam dictated that
they should go about killing innocent Americans and others who happened
to be on American soil at the time. It didn't seem to bother them. Some
of them could have even been Muslim. It didn't seem to bother them
because they had this sordid belief that they would end up in paradise
with dozens of virgins. Thank God most Muslims don't believe that. But
the trouble is, there are radical Islamists that do.
So the Congress, on September 18--a week after the worst attack on
American soil--passed a joint resolution, Public Law 107 40. And it was
to be cited, as it says in section 1, as the ``Authorization for Use of
Military Force.''
Mr. Speaker, I'm going to go to the trouble to read section 2(a)
because sometimes there are reporters who don't do their homework. They
think that reporting means, rather than digging through, reading things
for yourself, and getting the clear meaning of legislation for
yourself, that that's not nearly as effective as lazily asking
somebody, What do you think this does?
So we get polls; we get surveys; we get opinions. But having been a
judge and a chief justice, you didn't do that as a judge. You didn't do
that as a justice on an appellate court. You had to look at the law and
say, What does it say? And what do other laws, in which this may be in
context, cause it to mean?
{time} 1330
And look at it for yourself. Most of these folks, they're educated,
and so I hope they will take a look for themselves. Those that were
most concerned months ago that the NDAA gave unbridled power to the
President, what really concerned me as a former judge and chief justice
was reading section 2(a), authorization for use of the United States
Armed Forces.
Again, it's hard to fault folks because it was a week after this
horrible attack, and we weren't even sure who attacked us and why they
attacked us. We had gotten a pretty good idea early on.
So one week after September 11, 2001, this joint resolution is passed
into law. Section 2(a) says, in general, that the President is
authorized to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September
11, 2001, or harbored such organizations or persons in order to prevent
any future acts of international terrorism against the United States by
such nations, organizations, or persons.
Now as I understand--I haven't read the opinion this week from the
district court. The district court is not like it carries the weight of
the Supreme Court or even a court of appeals. But Congress really
appears to have given the President unbridled, unlimited, indefinite
authority to just detain, arrest, do whatever had to be done to protect
America from further attacks. And as we know from history, it's after
such horrible attacks or incidents in other times in history when there
is a temptation to overreact and to give too much power to one body or
one person, and later on, when things are calmed down and the people
are caught that perpetrated the horrible acts, we realize we lost a lot
of our rights, we lost a lot of our powers because we placed them in
one person.
And this is what this section 2(a) did. That's the way it struck me
when I first saw that after I got to Congress. And that was a matter of
concern. And it wasn't until the NDAA--I'm not on Armed Services--it
wasn't until the NDAA came up that I really started researching and
seeing exactly what this said and did.
I'm sure Speaker Boehner would be the first to tell people that he
and I often do not see eye to eye; but he gave me the assurance that if
the NDAA passed, he would let me come back with an amendment that would
fix the AUMF so that a President did not have the power--unlimited
power indefinitely--to detain American citizens on American soil.
So that was the impetus for trying to prepare a proper amendment that
[[Page H3151]]
would deal with the main problem, the unlimited power of the AUMF, but
also dispel concerns that people may have with the National Defense
Authorization Act, because that was going to have to be replaced,
redone, reauthorized. And I'm glad to say the Speaker kept his word and
we were allowed to bring forward a fix.
My friend Justin Amash and I have many times in his year-and-a-
quarter-or-so of being here have consoled each other as being one of
only two, three, four, five who voted for or against a bill. And we're
kind of out there by ourselves. So I was not surprised to see that
Justin Amash was trying to work on an amendment that would fix this
same concern that he and I had. I think his concern--and he can speak
more accurately toward this--but I think his concern was more with the
NDAA. Mine was more with the AUMF. This grant of power was far too
unbridled. It needed restraint.
We are blessed here in Congress to have people who have served in so
many walks of life. We've been blessed in a number of different ways.
And it's great to have such diversity--not just race, creed, religion,
gender--but actually differences of opinions and divergent backgrounds.
We have a prayer breakfast every Thursday morning on Capitol Hill,
and it's really a blessing to hear other Members' stories, Democrats
and Republicans. We take turns speaking at prayer breakfasts--one from
the Democratic Party, one from the Republican Party--each week. And it
is just incredible the way God has moved in lives and taken people,
whether it's being a school teacher or being a ditch digger, all kinds
of things, to propel them in life and ultimately land them here in
Congress.
It just happens that I have been blessed not with extraordinary
intelligence but with having been around people with extraordinary
intelligence, including brilliant people who have tremendous intellect
and insight into our Constitution.
I never expected to be in Congress. I just liked history and knew I
owed the Army 4 years from a scholarship at Texas A&M, and I had the
luxury of majoring in history. So I got to study under some incredible
historians who gave a different perspective on our Constitution. Rather
than a legal perspective, a historical perspective. And brilliant
people on policy throughout the history of man.
But when one reads this and one does not understand the Constitution
and the powers that are granted to Congress under the Constitution, one
can get the wrong impression. I have heard friends that I think a
tremendous amount of here in Congress who have said such things
publicly as ``every American citizen.'' Every person. The Bill of
Rights talks about persons. Yes, in some places it does. But they have
the idea it refers to persons in every place--it doesn't--every person
in America is entitled to go through an article III court.
And I appreciate and understand that misinterpretation. But when one
reads article III, section 1, what it says is:
The judicial power of the United States shall be vested in
one Supreme Court and in such inferior courts as the Congress
may from time to time ordain and establish.
{time} 1340
So the Congress has the authority never to even create a Federal
district court. The Congress has the power to eliminate every Federal
district court if it so chose. I am very grateful that Congress has not
chosen to eliminate every Federal district court. But, nonetheless, the
power is there to create or not create Federal district courts.
The Supreme Court has even spoken on this issue before and has made
clear that the power is entirely in Congress's hands. As my former
constitutional law professor, David Guinn at Baylor Law School, used to
say, there's only one court in the United States that owes its origin
to the Constitution, and that is the Supreme Court. Every other court
in the country that is a Federal court or tribunal or commission owes
its existence to the Congress.
Now, I have tremendous regard for President George W. Bush. He is a
brilliant man, despite what some people think and jokes that were made
at his expense. He's a brilliant man, and one of the wittiest people
that you can be around privately and just a real joy to be around, but
he got some bad advice. He had people who were lawyers who told him,
Hey, Mr. President, let's just have the executive branch set up a
military tribunal and let the military tribunal try terrorists, whether
American citizens or whatever. Let's set up tribunals here in the
executive branch.
Well, they had failed to notice that in article I, section 8 of our
Constitution, it says that Congress shall have power to lay and collect
taxes, and it says, ``to constitute tribunals inferior to the Supreme
Court.'' So really, you could arguably have a Federal district court
that is set up inferior to the Supreme Court under article I, section 8
just as you could under article III. I know there are some that say,
no, those are article III courts. Well, article I, section 8 really
seems to indicate you could call them Federal district tribunals. You
could establish those inferior courts under the Supreme Court under
article I, section 8.
Congress is also immediately given the power, shall have the power,
it says, ``to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations; to declare war,
grant letters of marque and reprisal, and make rules concerning
captures on land and water.''
We've got the power to make those rules of anybody who's captured on
land or water, the power to create the court. We've got the power, we
shall have it, to establish uniform rules of naturalization. We have
the power to dictate policy here in Congress by our legislation with
regard to immigration. We have the power, under this Constitution, it's
been determined over and over again, that we can say to immigrants,
legally and illegally in this country, You don't get a hearing in front
of a Federal district court. You must go to the court we have set up
over here that's inferior to the Supreme Court, but we're calling it an
immigration court.
In other cases, somebody's broke, we're given the power to set up
bankruptcy courts. And it's a sad testimonial for our country that a
man that's sometimes referred to as the Revolution's financier--there
are actually a few different sources. One was France. One was a Jewish
gentleman without whom many say we could not have afforded the
Revolution, and another one was a man from Philadelphia named Morris.
Morris, if one goes down the hall to the Rotunda and looks up, one of
the drawings, one of the paintings that's painted into the plaster, 189
feet up there at the top of the dome, is supposed to be a depiction of
Morris with a money bag, depicting him loaning money to the Revolution
to keep things going.
Mr. Morris ended up, after the Revolution, doing well, worked out
great for him. But because things were going so well in the country, it
looked like they were going to--he had bought a lot of land and a lot
of land in Virginia and up around this area, around where the District
of Columbia would ultimately be, and he had gotten overextended and he
was broke and he couldn't pay his bills. And so he ended up in a
debtors' prison in Philadelphia, a man to whom we owe so much for
having a successful Revolution so people, as our Founders said, for
truly the first time would actually be able to govern themselves. And a
principal financier ends up in debtors' prison in Philadelphia.
And yet the Constitution, itself, it said Congress would have the
power to create uniform laws on the subject of bankruptcies throughout
the United States. But it wasn't until after Morris got thrown in
debtors' prison and he had been in there for long enough that it
destroyed his health, it ruined him as a man, that he ended up
believing all was lost, dejected, when someone in Congress realized,
wait a minute, our Constitution gives us the power to create bankruptcy
courts. Maybe we ought to do that. They created the bankruptcy system,
and Mr. Morris was released from jail, but he was in such poor health
he never really enjoyed the freedoms that he had financed.
There are so many powers in this given to the Congress--creating
courts, not creating courts; creating tribunals, not creating
tribunals--and that's why, and I know there were friends of mine that
were in the Bush administration that disagree with me, but I believe
the
[[Page H3152]]
Supreme Court got it totally right when they told the Bush
administration, You don't have the right to create tribunals, to try
terrorists; you don't.
The Constitution, article I, section 8 says that the Congress shall
have the power to constitute tribunals inferior to the Supreme Court,
not the President. That's not in article II under the executive powers.
It's not in article III under judiciary power. The power to do that is
in article I, section 8--You don't have it. So until Congress comes
with military commissions or tribunals, they're not constitutional.
And so in 2006, not long after I got here, people prepared, through
our Judiciary Committee, prepared the Military Commission Act that was
constitutional because Congress did this.
My dear friend, and I mean that very sincerely, John Culberson from
Houston, Texas, is here on the floor with me. Mr. Speaker, I would
yield to Mr. Culberson.
Mr. CULBERSON. Thank you, very much, Mr. Gohmert, my good friend from
Texas. We share great passion for the 10th Amendment, for the
restoration of individual liberty and putting our government back in
their box; and I appreciate so much the time that you've spent on the
floor, Congressman Gohmert, focusing the attention of the Congress and
the country on the fact that this is a government of limited powers,
and most powers are reserved to individuals or to State and local
government, and we, as a constitutional conservative majority, are
working every day to do all we can to do much more than just control
spending. It's much more than balancing the budget. We are determined
to restore the 10th Amendment and individual liberty and put the
Federal Government back in its box, let Texans run Texas and get the
government out of our lives, out of our pockets, out of our way, and
off our backs. I support you in that effort, and I appreciate very much
you yielding to me for a minute.
I had a very brief housekeeping matter to take care of, as well as to
be here to support your work in the restoration of the 10th Amendment,
Mr. Gohmert.
{time} 1350
The gentleman from Texas (Mr. Gohmert) has been a leader in the
effort to restore the 10th Amendment, and he has focused the attention
of the country and the Congress on the uncontrolled spending that we
have seen in recent years. The level of debt and deficit has reached a
level unseen in our history. I deeply appreciate your commitment,
Congressman Gohmert, to work to do all that we can from our perspective
in the House, even though we're outnumbered--we've got a liberal
Senate, a liberal President. We control only one-third of the
government, but we have put the brakes on the spending by this
President. We've put the brakes on the uncontrolled spending that we've
seen since he took office, and we're going to continue to do that.
But it is bigger than that. It's bigger than spending. It's bigger
than a balanced budget, because the fundamental root of the problem is
that the Federal Government has gone so far beyond its limited bounds
that they have now intruded themselves into every aspect of our lives.
We, as a constitutional conservative majority, are committed to
restoring the checks and balances in the Constitution, the separation
of powers, and to remind people every day until we are back in control
of the Senate and we've got a Republican President. Once we've got a
Republican House, Mr. Gohmert, I know we'll be working arm in arm to
pass legislation to return power to the States, to restore individual
liberty. As Thomas Jefferson said, if you apply the core principles of
the Constitution to any problem, the knot will always untie itself.
So I deeply appreciate your commitment, Congressman Gohmert, to
focusing on the core principles of the Constitution, and know that we
are, all of us, every day that we're here, working hard to restore the
10th Amendment and individual liberty. I thank you for your leadership
in that effort, sir.
Mr. GOHMERT. Thank you.
And reclaiming my time, let me just say I'm awfully glad we have a
conservative person who believes in the 10th Amendment as strongly as I
do and States' rights as strongly as I do, and have you on the
Appropriations Committee. I mean, what better place for a conservative,
limited-Federal-power person to be than on the Appropriations
Committee? Thank you. I'm grateful for the work of John Culberson there
on our behalf.
It is supposed to be a government limited. As I note, the President
said previously--talking about that people interpret this Constitution
as a bunch of negative powers, things the Congress can't do or the
government can't do. We ought to focus on all they can do. Well, I like
the fact that all that Congress, all that the Presidency, all that
judiciary is supposed to be able to do is specified. Everything else,
as my friend Mr. Culberson pointed out, is resolved to the States and
the people.
Congress has this power to create the courts, Federal courts. States
take care of their own State system. It's one of the reasons, though,
that I voted against a couple of bills recently, because medical
malpractice reform was being dictated from here in Congress for every
State in the country.
I love what Texas did with medical malpractice reform in its State
court system, but it's a State court system. I also know that if the
Congress decides we need to start dictating to every State what their
State court system can or can't do, then when a far more liberal
Congress comes in they will be able to say, Look, you so-called
``conservative'' Republicans dictated to the States what their State
tort law should be, so now we're going to dictate to the States what we
think it should be, and it ends up being a Federal takeover of
something that is entirely a State system.
When it comes to the States' tort system, the State court system,
it's none of our business unless there is an adequate Federal nexus.
That's guided a couple of votes that may have surprised people that I
made, but I simply could not support Federal takeover of State tort
law.
Here is a Supreme Court decision from 1922, never been overruled. In
that, the Court said--it's at 260 U.S. 226, Klein v. Burke Construction
Company. It says:
Only the jurisdiction of the Supreme Court is derived
directly from the Constitution. Every other court created by
the general government derives its jurisdiction wholly from
the authority of Congress. That body may give, withhold, or
restrict such jurisdiction at its discretion, provided it be
not extended beyond the boundaries fixed by the Constitution.
That's exactly what the Constitution intended. Congress can create
Federal district courts, Federal commissions--whatever, drug court,
immigration court, whatever we feel appropriate as an inferior court to
the U.S. Supreme Court. We can do it under article I, section 8, or
article III.
In my amendment, to give people adequate feeling of protection, we
wanted to ensure that people's rights would be adequately protected,
and no President--whether it would be the prior Republican President,
this Democratic President, or the next President--would have the power
that should not be his were it not for an overyielding United States
Congress.
The amendment, the Gohmert-Landry original amendment--originally, the
Landry original amendment--just said: Nothing in the authorization for
use of military force or in the National Defense Authorization Act
shall be construed to deny the availability of the writ of habeas
corpus. That was what came from the committee.
I was very grateful to Jeff Landry and Scott Rigell for allowing me
to discuss and negotiate and work with them, but that's what went to
committee. I wasn't comfortable that that protected Americans' rights
because we still had the provision in the authorized use of military
force from September 18, 2001, that said the President still had all
this power and he could detain people indefinitely. That is a
reasonable interpretation of this AUMF--not the NDAA but the AUMF. That
was a reasonable interpretation of the 2001 AUMF.
And so to simply say someone would have the right to a writ of habeas
corpus in a hearing on that habeas corpus proceeding was not adequate
for me to gather back to the American people the rights that should be
theirs if it were not for the AUMF. So the proceeding, without further
amendment to that language, could have gone like this:
An American citizen is ordered detained by the President of the
United
[[Page H3153]]
States. He is taken to military detention; he is placed therein. He
would get a writ of habeas corpus hearing--habeas corpus meaning to
surrender the body. You've got to bring the body forward. I've had writ
of habeas corpus hearings as a judge many times. You have to determine:
Is there sufficient evidence more likely than not that this person
committed acts that justify the detention and the retaining of his body
in that detention?
If the courts give proper credence to the 2001 AUMF, then the court
would have that hearing and say, okay, there is evidence that makes it
more likely than not that this person, the writ applicant, committed
acts that authorize the President, under the 2001 act, to place him in
indefinite detention in a military facility. So there he would have had
his writ hearing, but he's still in indefinite detention in a military
facility. In my 4 years in the Army, I became very familiar with those
military facilities.
So I began checking with constitutional scholars I respected. I even
got back with my old con law professor.
{time} 1400
I started running different language by. How about if we say this?
How about if we say that? And others would make suggestions, and we
would tweak the language. This has been going on for weeks. Well, let's
change this word. Well, what if we add this phrase and that phrase.
Well, that doesn't really do it because you've still got this problem.
And so it was great talking with people who are really thinking and
trying hard to come up with a solution.
And the goal that I had, and in talking with Mr. Landry, Mr. Rigell,
Mr. Duncan, and Mr. Barletta, the goal is very simple. The
authorization for the use of military force from September 18, 2001,
gave the President unbridled discretion in confining, detaining
American citizens and others. We wanted to put American citizens--we
wanted to put people who were lawfully in the United States in the same
situation they were in before the unlimited gift of power from the
legislative branch to the executive branch.
I wasn't here, but I'm sure a week after 9/11, while we were still
reeling, and those of us in other places had just been out on our
courthouse square, holding hands, singing hymns, praying together,
hoping, praying that our country would not be attacked again and so
many people's lives lost, destroyed, so many losing hope, crushed to
know they'd never see their family member, never even be able to have a
legitimate funeral with their loved ones' remains.
I'm sure, I know that people meant to do the best they could to
protect the country. But 10 years later, 11 years later, almost, we can
look back and we could restrain that power once again.
So that was the goal. Let's get people back to the position they were
in the day before this incredible extension of power to the President
was given.
So the language that, with the help of others smarter than I, we were
able to put together to get us to that day before this incredible grant
of power to the President, was that nothing in the Authorized Use of
Military Force Act from 2001, nothing in the NDAA from months ago,
nothing from the NDAA that we're taking up now, nothing was going to be
construed to deny the availability of writ of habeas corpus, which were
the Landry/Rigell words. And then here's the additional language: or to
deny any constitutional rights in a court ordained or established by or
under Article III of the Constitution for any person who is lawfully in
the United States when detained pursuant to the Authorized Use of
Military Force Act.
And actually, and we looked at this a number of different ways, a lot
of scholars. Just by referencing the Authorized Use of Military Force
Act from 2001, it actually includes the subsequent amendment to that
AUMF by the NDAA some months back, or the amendment that we voted on
today. The NDAA is actually an amendment to the AUMF.
Some had asked, Louie, why did you say, deny any constitutional
rights in a court ordained or established under Article III constitute
for any person--why didn't you just say American citizens? That's who
we're most concerned about.
And again, I come back to this: I wanted to get back to where we were
before this incredible extension of power to the President occurred for
people who were lawfully in the United States.
I don't have any sympathy for people who may be sneaking across the
board as we speak, through tunnels or over fences or through openings
in fences or across rivers. I've got no sympathy for people coming in
who want to destroy our way of life and are sneaking in illegally to
destroy this life we have and the freedoms and liberties we have. So
those who are not lawfully in the United States, who are trying to do
us harm, killing Americans, destroying people, this is not for them.
But for anyone who is lawfully in the United States, we want to
return them to the same position of liberty they had before the
unbridled extension of power to the President September 18, 2001. To do
that, though--there are people who were lawfully here in the United
States, not U.S. citizens, but people who were lawfully here, who
committed acts, whether of violence or other things, who, before this
extension of power to the President in 2001, had no right to go into a
Federal district court. They had the right to go to an immigration
court, and that's it. No right to go before an Article III court.
And so we wanted to make sure that for those people who did not have
a right to get a full jury trial--immigrants do not have that right.
They're subject to the immigration courts. If they're going to be
deported, they go to the immigration court. They don't have a right to
go have a Federal trial in a United States district court over whether
or not they get to stay in the United States. That's been ruled on many
times. They don't get that kind of court.
So we've added the language at the end of subparagraph A, ``who is
otherwise entitled to the availability of such writ or such rights.''
So, we reestablished in the Gohmert/Landry/Rigell amendment, and Duncan
and Barletta as well, in that amendment we reestablish that for any--
not just any American citizen, but anybody lawfully in the United
States that is entitled to these rights before September 18 of 2001,
you're entitled to them again. And nothing in the AUMF, nothing in the
NDAA from months ago, nothing in the NDAA today, all amending the AUMF,
nothing in this shall be construed to deny those rights to an
individual.
Now, my good friend, Justin Amash, he wanted to fix things. But
actually his fix extended new rights that did not exist prior to
September 18 of 2001. And I understand his intentions.
And although I did not appreciate my friend Mr. Smith alluding to a
smokescreen, you don't spend hours and hours and hours trying to
perfect language to create a smokescreen. You do that to fix
legislation. And that's what I believe we did. That's what I believe
we've done today here on the House floor.
But, having been in the military, and having continued, as a Member
of Congress, to go to each funeral of people who, as Lincoln said, gave
the last full measure of devotion for their country, having attended
all of those in my district over the last 7 years, I know the price our
military pays. I know the rights that you give up when you go into the
military.
And so people, without realizing the full scope of the different
types of rights to different types of people in the Constitution, who
say everybody's entitled to constitutional rights under the Bill of
Rights, under the Constitution, yeah, but they're different rights and
you're in the military. You don't have a right to freedom of speech.
So we had a young man, a devoted member of the United States
military, who said some very bad things about our President,
unflattering things. Whether or not they're truthful is not the issue
for a member of the military.
{time} 1410
It is under a matter of the Uniform Code of Military Justice that was
created by Congress because Congress has that power under article I,
section 8 to create that court system and to not give members of the
military all of the rights that everybody else in America has. There
were some mornings at 5 a.m. that I would love to have had the freedom
of assembly and that I would have loved to have had the freedom of
speech to tell my commander where he
[[Page H3154]]
could go with his assembly at 5 a.m. and with the 25-mile march that
was going to follow that.
That was a time when we were not at war. Nonetheless, you have to
have discipline in the military.
Even though I may have totally agreed with the comments--I don't know
what all of them were, but this individual is in the military--when
you're in the military, you do not have the right to criticize anyone
in the chain of command. And it has to be that way.
In my heart, I was so deeply offended by the way in which President
Carter was failing to do anything about our hostages and about the act
of war that was perpetrated against our Embassy. Under everybody's
interpretation of international law, an attack on a country's embassy
is an act of war against that country. It should have provoked a
response from this country that made so clear to all of those radical
Islamists that attacked our Embassy in 1979 that when you attack the
United States of America--in our Embassy or on our home soil, either
one--they're both acts of war, and we will respond. You will not get
away with an act of war like that against us.
Because we failed to respond in any measurable manner, other than for
so long just basically begging them to give us our people back, we
appeared to be a paper tiger. We appeared to be a country that didn't
have the guts to step up and protect itself. That fact is still being
used to recruit people around the world to these radicalized groups of
Islamists.
Though I felt strongly about the impropriety of the way the President
was handling those things in 1979 and 1980, it was not appropriate for
a member of the military to publicly ever criticize a commander in his
chain of command. That's what the Commander in Chief is. So whether or
not any of us agrees with the soldier who criticized President Obama,
you have to have discipline in the military, and that's not
appropriate.
So why shouldn't he have had the right to come before an article III
court and say, Hey, I'm a member of the military. What happened to my
freedom of speech rights?
Under the Constitution, Congress has the power to set up the rules
and the rights for the military, and you don't have that right because
we've got to have a disciplined military.
For immigrants, many have said, Why don't I have the right to go get
a jury trial and prove my case? Why, your country should be forced to
allow me to stay here.
It's because you don't have that right under our Constitution. The
right you have under our Constitution is to go to an immigration court.
There are exceptions, of course, but that's the main right.
We have the authorization and the power under the Constitution to
create those systems; and as my friend Mr. Culberson pointed out,
they're limited to what is prescribed in the Constitution.
So that subparagraph (a) was the extent of the Gohmert-Landry-Rigell
amendment originally, but there were others who were concerned--but
look, look. What if the President does detain somebody? Even though he
doesn't have the power to detain, if this subparagraph (a) passes and
becomes part of the law, then the President won't have the power to
detain an American citizen or an American lawfully in this court who he
didn't have the power to detain before September 18 of 2001. But what
if he does that anyway?
And it has happened. People abuse their power. We know that. So what
if it happens that a President abuses the power that he does not have?
Let's get that right to a writ of habeas corpus hearing so that you
can come forward and establish and bring out the Gohmert-Landry-Rigell
amendment and say, Look, that authorized use of military force in 2001
that gave the President the power to just detain people indefinitely,
including in a military confinement, got changed today in the House in
2012; therefore, at the writ hearing, that would be granted under
subparagraph (c). The judge would have to say, You're right. I see that
Gohmert-Landry-Rigell amendment. The President doesn't have the right
to do that anymore, so we're going to have to let you go.
But the key would be to get a writ hearing in order to advocate the
proper position of the law as changed in subparagraph (a), because if
you can't come before a judge, then nobody is going to have the power
to order you released. So, I could understand that. Since I know
extremely well that I sure don't have a corner on the market of best
language, I realize--and our friend Bob Goodlatte was pushing this
issue, and I know Bob to be a brilliant lawyer, just a great American
patriot. I know, whether we agree or not on every issue, when Bob
Goodlatte talks about an issue, I ought to listen because he's a smart,
caring man. I realize he has got a point, which is that (a) does fix
the problem, according to the people that I worked with and checked
with, and we worked the language together to get it to work.
But he's right, what if the President does detain somebody against
what the law says in (a)? How do you get that heard?
Okay. We added subparagraph (b) that says:
Not later than 48 hours after the date on which a person
who is lawfully in the United States is detained pursuant to
the Authorization for Use of Military Force, the President
shall notify Congress of the detention of such person.
So the President, if he does detain somebody against the law in
section 103, subparagraph (a), has got to notify us. Then I'm sure
there would be a lot of people on both sides of the aisle who would
come forward and say, Hey, we've changed the law. The President can't
do that. Under subparagraph (a), you don't have that power anymore. We
took that away from you the way you had it since September 18 of 2001.
That has changed. Now that you've notified us, we are going to help
that person file for a writ of habeas corpus hearing in court as
specified in subparagraph (a). It will be an article III U.S. Federal
district court, and we know we will have a proper hearing.
That's why subparagraph (c) says:
A person who is lawfully in the United States when detained
pursuant to the Authorization for Use of Military Force shall
be allowed to file an application for habeas corpus relief in
an appropriate district court--not in an immigration court,
not in a military tribunal, but in a Federal district court--
not later than 30 days after the date on which the person is
placed in military custody.
Now, there are some who've tried to say in the last couple of days
that, actually, this Gohmert-Landry-Rigell amendment restricted the
right of writs of habeas corpus. Hopefully, they meant well; but the
truth is we're aware of writs of habeas corpus that happen long after
30 days. There is no requirement that if there is ever going to be a
writ of habeas corpus hearing that it has to be within 30 days.
So what we were doing was not restricting the right of writs of
habeas corpus. We were actually making them stronger so that the
President, unless he is going to break the law and act illegally by not
notifying Congress within 48 hours--well, guess what? Things have a way
of working the truth out.
{time} 1420
And if the President were to violate this kind of law, it might be
the basis for an impeachment proceeding. To go around and to
intentionally violate the law? This is serious stuff. We knew by
putting it in the law, it would give that kind of ability to Congress,
to enforce what we've done.
With regard to my friend Justin Amash and Adam Smith's amendment, it
appeared to be a choice. With their amendment, it was going to give new
rights to terrorists that would be greater than any member of our
United States military has; or under the Gohmert-Landry-Rigell
amendment, it would return the power to people that they had before
September 18, 2001, this unlimited ability of the President to detain
people indefinitely in potentially a military detention facility.
I appreciated the bipartisan support for our amendment today. We had
Democrats that voted with us on this issue, people that care very
deeply about this issue. We had Republicans that did not vote with us.
I think 19 Republicans didn't vote with us, but I believe 243 people
from both sides of the aisle voted for this amendment to fix this
power. We needed to rein in the power of the Presidency, and we did
that.
I'm very grateful to Heritage for embracing the concept that was
pursued
[[Page H3155]]
here rather than a concept that would extend greater rights to
terrorists on American soil than our own American soldiers would have.
I think it's a good day. I think it's a good day. People have heard
me, Mr. Speaker, talk about how we have messed up what's going on in
Afghanistan. The Taliban was defeated; they were routed. We had less
than 1,500 Americans in Afghanistan when the Taliban was defeated. And
so many Americans have forgotten, but for so much of the Iraq war
people were saying--now, the way the Taliban was defeated in
Afghanistan, that's the way to fight a war on foreign soil. You empower
the enemy of our enemy, give them support. We gave them aerial support,
we gave them embedded Special Ops and intelligence people that were a
tremendous help. I've heard that personally.
The biggest hero of those battles, General Dostum, I met with again
just last month. That was over in Afghanistan. They're our allies. For
those that say you Republicans are a bunch of xenophobes or
Islamaphobes, these are Muslim friends. They buried family and friends
while Americans were burying family and friends because they had fought
together. They initially defeated the Taliban, and they did it very
effectively. Then we began to add troops by the tens of thousands, and
we became occupiers in Afghanistan. We began to pour billions and
billions and billions of dollars into Afghanistan. Then Pakistan began
supporting the Taliban, and they continue to support the Taliban and
we're continuing to support Pakistan.
Another good thing today was amendments that said, Hey, Pakistan, if
you're going to keep funding our enemies and helping our enemies, we're
not going to keep giving you any funds. That was another good measure
that got bipartisan support today. That was a good measure.
But as long as we've got troops--I don't think President Obama has
handled this very well in Afghanistan. I think he's gotten some bad
advice. I think President Bush got some bad advice. But as long as we
have troops on foreign soil, we should never again do what was done to
our military in Vietnam, yank their feet out from under them and leave
our allies to be killed.
With that, Mr. Speaker, I yield back the balance of my time.
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