[Congressional Record Volume 161, Number 1 (Tuesday, January 6, 2015)]
[Senate]
[Pages S13-S14]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself and Mr. Lee):
  S. 24. A bill to clarify that an authorization to use military force, 
a declaration of war, or any similar authority shall not authorize the 
detention without charge or trial of a citizen or lawful permanent 
resident of the United States; to the Committee on the Judiciary.


 =========================== NOTE =========================== 

  
  On page S13, January 6, 2015, in the first column, the following 
appears: By Mrs. FEINSTEIN: S. 24. A bill to clarify that an 
authorization to use military force, a declaration of war, or any 
similar authority shall not authorize the detention without charge 
or trial of a citizen or lawful permanent resident of the United 
States; to the Committee on the Judiciary.
  
  The online Record has been corrected to read: By Mrs. FEINSTEIN 
(for herself and Mr. Lee): S. 24. A bill to clarify that an 
authorization to use military force, a declaration of war, or any 
similar authority shall not authorize the detention without charge 
or trial of a citizen or lawful permanent resident of the United 
States; to the Committee on the Judiciary.


 ========================= END NOTE ========================= 

  Mrs. FEINSTEIN. Mr. President, today I rise to introduce the Due 
Process Guarantee Act, which passed the Senate in 2012 with 67 votes as 
an amendment to the Defense Authorization Act for fiscal year 2013.
  Unfortunately, the amendment was taken out in the Conference 
Committee that year. It is my hope that the Senate will pass this 
legislation again this year, and this time the House will support it so 
that it can finally be enacted into law to protect Americans from being 
detained indefinitely.
  The bipartisan bill I am introducing today, with Senator Lee as the 
lead co-sponsor, is almost identical to the amendment that passed the 
Senate in December 2012 with 67 votes. The previous version of this 
bill had a hearing in the Judiciary Committee on February 29, 2012.
  This legislation is necessary to prevent the U.S. Government from 
detaining its citizens indefinitely.
  Unfortunately, indefinite detention has been a part of America's not-
too-distant past. The internment of Japanese-Americans during World War 
II remains a dark spot on our Nation's legacy, and is something we 
should never repeat.
  To ensure that this reprehensible experience would never happen 
again, Congress passed and President Nixon signed into law the Non-
Detention Act of 1971, which repealed a 1950 statue that explicitly 
allowed the indefinite detention of U.S. citizens.
  The Non-Detention Act of 1971 clearly states:

       No citizen shall be imprisoned or otherwise detained the 
     United States except pursuant to an act of Congress.

  Despite the shameful history of indefinite detention of Americans and 
the legal controversy over the issue since 9/11, during debate on the 
defense authorization bill in past years, some in the Senate have 
advocated for allowing the indefinite detention of U.S. citizens.
  Proponents of indefinitely detaining U.S. citizens argue that the 
Authorization for Use of Military Force, AUMF, that was enacted shortly 
after 9/11 is, quote, ``an act of Congress,'' in the language of the 
Non-Detention Act of 1971, that authorizes the indefinite detention of 
American citizens regardless of where they are captured.
  They further assert that their position is justified by the U.S. 
Supreme Court's plurality decision in the 2004 case of Hamdi v. 
Rumsfeld. However, the Hamdi case involved an American captured on the 
battlefield in Afghanistan.
  Yaser Esam Hamdi was a U.S. citizen who took up arms on behalf of the 
Taliban and was captured on the battlefield in Afghanistan. The divided 
Court did effectively uphold his military detention, so some of my 
colleagues use this case to argue that the military can indefinitely 
detain even American citizens who are arrested domestically here on 
U.S. soil, far from the battlefield of Afghanistan.
  However, the Supreme Court's opinion in the Hamdi case was a muddled 
decision by a four-vote plurality that recognized the power of the 
government to detain U.S. citizens captured in such circumstances as 
``enemy combatants'' for some period, but otherwise repudiated the 
government's broad assertions of executive authority to detain citizens 
without charge or trial.
  In particular, the Court limited its holding to citizens captured in 
an area of, quote, ``active combat operations'', unquote, and concluded 
that even in those circumstances the U.S. Constitution and the Due 
Process Clause guarantees U.S. citizens certain rights, including the 
ability to challenge their enemy combatant status before an impartial 
judge.
  The plurality's opinion stated:

       It [the Government] has made clear, however, that, for 
     purposes of this case, the `enemy combatant' that it is 
     seeking to detain is an individual who, it alleges, was `part 
     of or supporting forces hostile to the United States or 
     coalition partners' in Afghanistan and who `` `engaged in an 
     armed conflict against the United States'' there. Brief for 
     Respondents 3. We therefore answer only the narrow question 
     before us: whether the detention of citizens falling within 
     that definition is authorized.''

  The opinion goes on to say at page 517 that ``we conclude that the 
AUMF is explicit congressional authorization for the detention of 
individuals in the narrow category we describe . . .''
  Indeed, the plurality later emphasized that it was discussing a 
citizen captured on a foreign battlefield. Criticizing Justice Scalia's 
dissenting opinion, the opinion says, ``Justice Scalia largely ignores 
the context of this case: a United States citizen captured in a foreign 
combat zone.'' The plurality italicized and emphasized the word 
``foreign'' in that sentence.
  Thus, to the extent the Hamdi case permits the government to detain a 
U.S. citizen ``until the end of hostilities,'' it does so only under a 
very limited set of circumstances, namely citizens taking an active 
part in hostilities, who are captured in Afghanistan, and who are 
afforded certain due process protections, at a minimum.
  Additionally, decisions by the lower courts have contributed to the 
current state of legal ambiguity when it comes to the indefinite 
detention of U.S. citizens, such as Jose Padilla, a U.S. citizen who 
was arrested in Chicago in 2002. He was initially detained pursuant to 
a material witness warrant based on the 9/11 terrorist attacks and 
later designated as an ``enemy combatant'' who conspired with al-Qaeda 
to carry out terrorist attacks including a plot to detonate a ``dirty 
bomb'' inside the U.S.
  Padilla was transferred to the military brig in South Carolina where 
he was detained for three and a half years while seeking habeas corpus 
relief. Padilla was never charged with attempting to carry out the 
``dirty bomb'' plot. Instead, Padilla was released from military 
custody in November 2005 and transferred to Federal civilian custody in 
Florida where he was indicted on other charges in Federal court related 
to terrorist plots overseas.
  While he was indefinitely detailed by the military, Padilla filed a 
habeas corpus petition which was litigated at first in the Second 
Circuit Court of Appeals, and then in the Fourth Circuit Court of 
Appeals. In a 2003 decision by the Second Circuit known as Padilla v. 
Rumsfeld, the Court of Appeals held that the AUMF did not authorize his 
detention, saying: ``we conclude that clear congressional authorization 
is required for detentions of American citizens on American soil 
because 18 U.S.C.

[[Page S14]]

Sec. 4001(a) the ``Non-Detention Act'', prohibits such detentions 
absent specific congressional authorization. Congress's Authorization 
for Use of Military Force Joint Resolution, . . . passed shortly after 
the attacks of September 11, 2001, is not such an authorization.''
  This requirement for ``clear congressional authorization'' to detain 
is known as the Second Circuit's ``Clear Statement Rule.''
  However, the Fourth Circuit Court of Appeals reached the opposite 
conclusion, finding that the AUMF did authorize his detention. It is 
worth pointing out, however, that their analysis turned entirely on the 
disputed claims that ``Padilla associated with forces hostile to the 
United States in Afghanistan,'' and, ``like Hamdi, Padilla took up arms 
against United States forces in that country in the same way and to the 
same extent as did Hamdi.''
  Facing an impending Supreme Court challenge and mounting public 
criticism for holding a U.S. citizen arrested inside the U.S. as an 
enemy combatant, the Bush administration relented, and ordered Padilla 
transferred to civilian custody to face criminal conspiracy and 
material support for terrorism charges in Federal court.
  I believe that the time is now to end the legal ambiguities, and have 
Congress state clearly, once and for all, that the AUMF or other 
authorities do not authorize indefinite detention of Americans 
apprehended in the U.S.
  To accomplish this, we are introducing legislation again this year 
which affirms and strengthens the principles behind the Non-Detention 
Act of 1971.
  It amends the Non-Detention Act to provide clearly that no military 
authorization allows the indefinite detention of U.S. citizens or Green 
Card holders who are apprehended inside the U.S.
  Like the amendment that passed with 67 votes in 2012, the bill 
creates a new subsection (b) of the Non-Detention Act which clearly 
states: ``A general authorization to use military force, a declaration 
of war, or any similar authority, on its own, shall not be construed to 
authorize the imprisonment or detention without charge or trial of a 
citizen or lawful permanent resident of the United States apprehended 
in the United States.''
  Like the previous version, this bill amends the Non-Detention Act to 
codify the Second Circuit's ``Clear Statement Rule'' from the Padilla 
case. So new subsection (a) will read, ``No citizen or lawful permanent 
resident of the United States shall be imprisoned or otherwise detained 
by the United States except consistent with the Constitution and 
pursuant to an act of Congress that expressly authorizes such 
imprisonment or detention.''
  Making the Clear Statement Rule part of subsection (a) strengthens 
the Non-Detention Act even more by requiring Congress to be explicit if 
it wants to detain U.S. citizens indefinitely. Subsection (b) clarifies 
that an authorization to use military force, a declaration of war, or 
any similar authority does not authorize the indefinite detention of a 
U.S. citizen or a Lawful Permanent Resident of the U.S., also known as 
a Green Card holder.
  Some may ask why this legislation protects Green Card holders as well 
as citizens. And others may ask why the bill does not protect all 
persons'' apprehended in the U.S. from indefinite detention.
  Let me make clear that I would support providing the protections in 
this amendment to all persons in the United States, whether lawfully or 
unlawfully present. But the question comes, is there enough political 
support to expand this amendment to cover others besides U.S. citizens 
and Green Card holders?
  Wherever we draw the line on who should be covered by this 
legislation, I believe it violates fundamental American rights to allow 
anyone apprehended on U.S. soil to be detained without charge or trial.
  The FBI and other law enforcement agencies have proven, time and 
again, that they are up to the challenge of detecting, stopping, 
arresting, and convicting terrorists found on U.S. soil, having 
successfully arrested, detained and convicted hundreds of these heinous 
people, both before and after 9/11.
  Specifically, there have been 556 terrorism-related convictions in 
federal criminal court between 9/11 and the end of 2013, according to 
the Department of Justice.
  Also, it is important to understand that suspected terrorists who may 
be in the U.S. illegally can be detained within the criminal justice 
system using at least the following 4 options:
  They can be charged with a Federal or State crime and held; they can 
be held for violating immigration laws; they can be held as material 
witnesses as part of Federal grand jury proceedings; and they can be 
held for up to 6 months under Section 412 of the Patriot Act.
  I want to be very clear about what this bill is and is not about. It 
is not about whether citizens such as Hamdi and Padilla, or others who 
would do us harm, should be captured, interrogated, incarcerated, and 
severely punished. They should be.
  But what about an innocent American? What about someone in the wrong 
place at the wrong time? The beauty of our Constitution is that it 
gives everyone in the United States basic due process rights to a trial 
by a jury of their peers.
  As President Obama said when referring to the indefinite detention of 
non-Americans at Guantanamo:

       ``Imagine a future--10 years from now or 20 years from 
     now--when the United States of America is still holding 
     people who have been charged with no crime on a piece of land 
     that is not part of our country. . . . Is that who we are? Is 
     that something that our Founders foresaw? Is that the America 
     we want to leave to our children? Our sense of justice is 
     stronger than that.''

  The same questions could be asked of those who would indefinitely 
detain Americans arrested on U.S. soil.
  Is that who we are?
  Does that reflect the America we want to leave to our children?
  Now is the time to clarify U.S. law to state unequivocally that the 
government cannot indefinitely detain American citizens and Green Card 
holders captured inside this country without trial or charge.
  The Federal Government experimented with indefinite detention of U.S. 
citizens during World War II, a mistake we now recognize as a betrayal 
of our core values.
  Let us not repeat it. I urge my colleagues to support this 
legislation.
                                 ______