[Congressional Record Volume 167, Number 157 (Monday, September 13, 2021)]
[Senate]
[Pages S6458-S6459]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Lee, Mr. Whitehouse, Mr. 
        Cruz, and Ms. Collins):
  S. 2718. 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, and for other purposes; to the 
Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, today, I am reintroducing legislation 
to ensure that no American Citizen or green card holder faces 
indefinite detention without charge or trial.
  Indefinite detention is an unfortunate legacy 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 it 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. The Act states that ``no citizen shall be 
imprisoned or otherwise detained by the United States except pursuant 
to an Act of Congress.''
  One would have hoped that this legislation would have brought an end 
to the notion that Americans could ever again be imprisoned at the whim 
of the Executive. Yet, in 2002, Jose Padilla, a U.S. citizen, was 
arrested in Chicago. He was initially detained pursuant to a material 
witness warrant based on the 9/11 terrorist attacks, but he was later 
designated as an ``enemy combatant'' who conspired with al-Qaeda to 
carry out terrorist attacks inside the United States.
  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 a 
terrorist attack. Instead, he was transferred to Federal civilian 
custody in Florida in November of 2005, where he was convicted of other 
charges related to terrorist plots overseas.
  While he was detained by the military, Padilla filed a habeas corpus 
petition, which was first litigated in the Second Circuit Court of 
Appeals. The Second Circuit rejected the argument, advanced by the Bush 
Administration, that Padilla's detention was authorized

[[Page S6459]]

by the Authorization for the Use of Military Force (AUMF) against al-
Qaeda and its affiliated terrorist groups, concluding instead that 
``clear congressional authorization is required for detentions of 
American citizens on American soil'' and the AUMF was ``not such an 
authorization.'' Ultimately, however, the Supreme Court reversed the 
Second Circuit's decision on other grounds, leaving an open question as 
to whether the AUMF or other military authorities can be used to 
indefinitely detain Americans apprehended in the United States.
  It is past time for Congress to resolve this legal ambiguity, 
consistent with our values, by stating once and for all that the AUMF 
and similar authorities do not authorize the indefinite detention of 
Americans apprehended in the United States. The Due Process Guarantee 
Act would accomplish this by codifying the ``clear statement'' rule 
articulated by the Second Circuit in Jose Padilla's case and clarifying 
that authorizations for the use of military force and similar 
authorizations cannot be construed as acts of Congress that permit 
indefinite detention.
  There is no legitimate reason to detain Americans without due 
process. We have a court system that is fully capable of trying and 
convicting terrorism suspects using existing laws and processes. We 
made a serious mistake when we detained Japanese-Americans during World 
War II, and we must never repeat it.
  I thank the Senator from Utah for his long partnership with me on 
this issue as well as the Senators from Rhode Island, Texas, and Maine 
for their longstanding support. We were able to pass this bill in the 
Senate in 2013, and I am confident we can do so again.
  I ask unanimous consent that a copy of the bill be included in the 
Record.

                                S. 2718

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Due Process Guarantee Act''.

     SEC. 2. PROHIBITION ON THE INDEFINITE DETENTION OF CITIZENS 
                   AND LAWFUL PERMANENT RESIDENTS.

       (a) Limitation on Detention.--
       (1) In general.--Section 4001(a) of title 18, United States 
     Code, is amended--
       (A) by striking ``No citizen'' and inserting the following:
       ``(1) No citizen or lawful permanent resident of the United 
     States''; and
       (B) by adding at the end the following:
       ``(2) Any Act of Congress that authorizes an imprisonment 
     or detention described in paragraph (1) shall be consistent 
     with the Constitution and expressly authorize such 
     imprisonment or detention.''.
       (2) Applicability.--Nothing in section 4001(a)(2) of title 
     18, United States Code, as added by paragraph (1)(B), may be 
     construed to limit, narrow, abolish, or revoke any detention 
     authority conferred by statute, declaration of war, 
     authorization to use military force, or similar authority 
     effective prior to the date of the enactment of this Act.
       (b) Relationship to an Authorization To Use Military Force, 
     Declaration of War, or Similar Authority.--Section 4001 of 
     title 18, United States Code, as amended by subsection (a) is 
     further amended--
       (1) by redesignating subsection (b) as subsection (c); and
       (2) by inserting after subsection (a) the following:
       ``(b)(1) No United States citizen or lawful permanent 
     resident who is apprehended in the United States may be 
     imprisoned or otherwise detained without charge or trial 
     unless such imprisonment or detention is expressly authorized 
     by an Act of Congress.
       ``(2) A general authorization to use military force, a 
     declaration of war, or any similar authority, on its own, may 
     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.
       ``(3) Paragraph (2) shall apply to an authorization to use 
     military force, a declaration of war, or any similar 
     authority enacted before, on, or after the date of the 
     enactment of the Due Process Guarantee Act.
       ``(4) This section may not be construed to authorize the 
     imprisonment or detention of a citizen of the United States, 
     a lawful permanent resident of the United States, or any 
     other person who is apprehended in the United States.''.
                                 ______