[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.''.
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