[Congressional Record (Bound Edition), Volume 158 (2012), Part 5]
[House]
[Pages 7442-7447]
[From the U.S. 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,

[[Page 7443]]

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 
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

[[Page 7444]]

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 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

[[Page 7445]]

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 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

[[Page 7446]]

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 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

[[Page 7447]]

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 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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