Detention Policy And The Defense Bill: Statement Of Senator Leahy On Feinstein Amendment SA 3018 to S.3254, The National Defense Authorization Act for Fiscal Year 2013

The National Defense Authorization Act (NDAA) that was enacted into law last December contained several deeply troubling provisions related to the indefinite detention of individuals without charge or trial.  These provisions undermine our Nation’s fundamental principles of due process and civil liberties.  I strongly opposed these provisions during last year’s debate, and believe that we must eliminate and fix those flawed provisions.  Toward that end, I voted last night in favor of the amendment offered by Senator Feinstein, which clarified that our Government cannot detain indefinitely any citizen or legal permanent resident apprehended in the United States.  It is my hope that this is a positive step forward in our efforts to undo some of the damage from last year’s NDAA. 

But our work is not done.  As I have stated before, I believe that the vital protections of our Constitution extend to all persons here in the United States, regardless of citizenship or immigration status.  That is why I cosponsored an amendment filed by Senator Mark Udall that would go beyond the scope of the Feinstein amendment to extend the protection against indefinite detention to any person within the United States.   I look forward to working with Senator Udall and others in our continuing efforts to improve the law in this area.

I am fundamentally opposed to indefinite detention without charge or trial.  I fought against the Bush administration policies that led to the current situation, with indefinite detention as the de facto policy.  I opposed President Obama’s executive order in March 2011 that contemplated indefinite detention, and I helped lead the efforts against the detention-related provisions in last year’s NDAA.  Simply put, a policy of indefinite detention has no place in the justice system of any democracy – let alone the greatest democracy in the world. 

The American justice system is the envy of the world, and a regime of indefinite detention diminishes the credibility of this great Nation around the globe, particularly when we criticize other governments for engaging in such conduct, and as new governments in the midst of establishing legal systems look to us as a model of justice.  Indefinite detention contradicts the most basic principles of law that I have pledged to uphold since my years as a prosecutor and in our senatorial oath to defend the Constitution.  That is why I have opposed and will continue to oppose indefinite detention.

Last December, Senator Feinstein introduced the Due Process Guarantee Act, which was at the core of her amendment to this year’s NDAA.  Both the Due Process Guarantee Act and Senator Feinstein’s amendment make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention.  In February, I chaired a hearing to examine the Due Process Guarantee Act, and the Judiciary Committee heard testimony from witnesses who asserted that no individual arrested within the United States should be detained indefinitely – regardless of citizenship or immigration status.  I wholeheartedly agree, and I believe that the Constitution requires no less.

The notion of indefinitely imprisoning American citizens is the most striking, but to me the Constitution creates a framework that imposes important legal limits on the Government and provides that all people in the U.S. have fundamental liberty protections.  That is why I have cosponsored Senator Udall’s amendment, which provides expansive protections against indefinite detention and fixes this unwise policy for all people.  As I said before, though, I view the adoption of Senator Feinstein’s amendment as a positive first step towards this goal.

During last night’s Senate floor debate on Senator Feinstein’s amendment, however, some made fundamentally flawed legal arguments and interpretations.  As Chairman of the Senate Judiciary Committee, I feel it is important to set the record straight. 

According to those who had opposed our efforts and support indefinite detention, Senator Feinstein’s amendment should somehow be read as authorizing the indefinite detention of United States citizens captured on U.S. soil.  They contended that the Supreme Court in Hamdi v. Rumsfeld held that the Authorization for the Use of Military Force (AUMF) expressly authorized the indefinite detention of citizens, regardless of where they were apprehended.  This assertion is flatly wrong, entirely unsupported by the actual text of the opinion and, I believe, contrary to the Constitution.

Much of last night’s debate centered on the language in Senator Feinstein’s amendment that prohibited the “detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an act of Congress expressly authorizes such detention.”  Senators who had opposed our remedial efforts and support indefinite detention asserted that the Supreme Court in Hamdi concluded that the AUMF was an “explicit authorization” of such detention even for  citizens captured in the U.S. and that the AUMF was an act of Congress that fulfills the exception in the Feinstein amendment.  The Senators ignore the fact that the text of the AUMF contains no reference whatsoever to the detention of individuals without charge or trial, and certainly no express reference to or authority for the detention of citizens in such a manner.  Moreover, nowhere in the plurality or dissenting opinions in Hamdi do any of the Justices state that the AUMF expressly authorizes the detention of citizens without charge or trial. 

The preexistence of the AUMF does not fulfill the requirement that the amendment seeks to create and that requires express congressional authorization of exceptional authority after the adoption of the Feinstein amendment.  Senator Feinstein did not intend to write and the Senate did not intend to pass a nullity.  If this opposition argument were right, the amendment changed nothing. 

Senator Levin  acknowledged in his remarks last night that the “Supreme Court in Hamdi held that the existing authorization for use of military force does address this issue and does explicitly, in their words, authorize detention of U.S. citizens in that situation which was on the battlefield in Afghanistan.”  (emphasis added)  The Hamdi case did not address and did not expressly authorize the indefinite detention of U.S. citizens apprehended in the U.S.  As Senator Feinstein and Senator Durbin have pointed out, the Hamdi ruling was limited to “individuals who fought against the United States in Afghanistan as part of the Taliban.” 

The substance of the Supreme Court’s legal analysis is important here, and the attempts to gloss over the actual text of the Hamdi opinion cannot go unchecked.  The starting point of the Court’s analysis in this regard was the text of the Non-Detention Act, codified at 18 U.S.C. Section 4001(a), which states that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”  The Hamdi court then turned to whether the AUMF constituted an act of Congress within the scope of this exception, such that Hamdi’s detention would be authorized.  In her plurality opinion, Justice O’Connor concluded that the answer was yes, but she made certain to circumscribe carefully the scope of that ruling by saying “we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe,” i.e. “individuals who fought against the United States in Afghanistan as part of the Taliban.”  Stated simply, the Hamdi decision does not stand for the proposition that the AUMF expressly authorizes the indefinite detention of U.S. citizens captured on U.S. soil. 

Although last night’s debate on the Hamdi decision focused largely on the statutory authority to detain individuals, we must also not lose sight of other aspects of that opinion regarding the nature and duration of law of war detention, and how changing circumstances might warrant re-examination of the authority for such detention.  Last night, Senator Graham stated that Hamdi’s imprisonment “could last for the rest of his life because the law of war detention can last for the duration of the relevant conflict.”  Although I do not necessarily disagree that law of war detention has historically been viewed as appropriate for the duration of the relevant conflict, this statement begs the question of when and how the duration of the relevant conflict is determined.

In her opinion in Hamdi, Justice O’Connor stated that the AUMF justified detention as part of the exercise of necessary and appropriate force “if the record establishes that United States troops are still involved in active combat in Afghanistan” against Taliban combatants.  Significantly, Justice O’Connor wrote that “if the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”  Accordingly, as we wind down our combat operations in Afghanistan, Congress and the courts should consider carefully how those changing circumstances might affect the legitimacy of so-called law of war detention authority under the AUMF.

I also continue to be deeply disturbed by the mandatory military detention provisions that were included in last year’s NDAA through Section 1022.  In the fight against al Qaeda and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need – not limit those tools, as was required by this law.  That is why the Secretary of Defense, Attorney General, Director of the FBI, and Director of National Intelligence all objected to this section and it was modified to require the President to produce procedures to determine who meets the definition of a person subject to mandatory military detention.  I appreciate that the President took an aggressive approach in these procedures to preserve the flexibility of law enforcement, as well as military and intelligence professionals, to investigate and prosecute alleged terrorists. 

However, these procedures do not mitigate my concerns that the mandatory military detention requirements are overly broad and threaten core constitutional principles.  Once sacrificed, our treasured constitutional protections are not easily restored.  After all, the policy directive of this President can be undone by a future administration.  That is why I have cosponsored Senator Udall’s amendment to this year’s NDAA that would repeal this ill-advised authority. 

In Hamdi, Justice O’Connor stated unequivocally that “[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.”  We can never forget that the power of our Federal Government is bound by the Constitution.  The detention provisions enacted through last year's NDAA are deeply troublesome.  They do not represent Vermont values, they do not represent American values, and they have no place in this world.  Moving forward, I urge all Senators to join in support of upholding the principles of our Constitution, protecting American values, and championing the rule of law. We need a bipartisan effort to guarantee that the United States remains the model for the rule of law to the world. 

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