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Public Statements

National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:
Date:
Location: Washington, DC

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Mrs. FEINSTEIN. Mr. President, I rise to express my continued opposition to the detention provisions in the Defense authorization bill.

I was on the Intelligence Committee prior to 9/11, and I have watched the transition since that time. I have watched America--to use a phrase--get its act together, and I am proud of where this country stands at this time with the procedures, the interrogation techniques, the custody issues, and the prosecutions that have been successful in the last 10 years. In my judgment, this country is safer now than we were before 9/11.

Before the recess, I laid out my views on why the detainee provisions in the Armed Services bill were detrimental to national security because they reduce the President's flexibility to make decisions on how best to detain and potentially interrogate and prosecute suspected terrorists. Today, I would like to speak to the two amendments I have filed, and I will describe them in a moment.

Let me also reference two letters in opposition to the detention provisions in the underlying bill: one written to me from the Director of National Intelligence, James Clapper, and the second written yesterday to Chairman Levin from Bob Mueller, the Director of the FBI.

These letters are in addition to the Statement of Administrative Policy, which includes a veto threat to the detention provisions and the letter from the Secretary of Defense, Leon Panetta, both of which were inserted into the Record before the recess.

So I note that the provisions in the bill we are considering are opposed by the White House, by the Secretary of Defense, the Director of National Intelligence, and the Director of the FBI. These top national security officials are all concerned that the bill reduces the administration's flexibility to combat terrorism, both at home and abroad, and I would agree with that.

I will ask at the appropriate time for a vote on amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This is a very simple amendment that only adds one word, ``abroad,'' to section 1032 of the underlying bill.

Currently, this bill creates a presumption that members or parts of al-Qaida or ``associated forces'' will be held in the military detention system, and I disagree with that approach. I believe the President should have the flexibility to hold captured terrorists in the military or the criminal justice systems, and the decision of which system to use should be made based on the individual facts and evidence of each case.

Putting aside that general view, I am very concerned that creating a presumption for military custody--which this bill does--and requiring a cumbersome waiver process will jeopardize counterterrorism cases and intelligence gathering. This concern is not only mine, it has been raised by the White House, by Secretary Panetta, and very directly by Director Mueller in his letter.
So my amendment would clarify the situation and remove the confusion and delay that I believe this bill will cause. My amendment will make clear that under section 1032 of this bill the U.S. Armed Forces are only required to hold a suspected terrorist in military custody when that individual is captured abroad. All that amendment does is add that one word, ``abroad,'' to make clear that the military will not be roaming our streets looking for suspected terrorists. My amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States.

My amendment makes clear that inside the United States there is no presumption for military custody. Inside the United States, a Customs agent or local law enforcement officer could follow his or her standard process and turn a suspected terrorist over to the FBI for handling without having to worry about whether a waiver may apply or whether it is required.

The FBI has changed. There are 56 field offices, there is a national security branch, and it is staffed with thousands of agents inside the United States. The FBI is well equipped to handle a terrorist inside the United States, but the Department of Defense is not. Listen to what Director Mueller wrote. He notes, and I quote:

The legislation introduces a substantial element of uncertainty as to what procedures are to be followed at perhaps the most critical time in the development of an investigation. .....

Now, I understand that the chairman and ranking member of the Armed Services Committee have included a waiver and have required that the administration issue procedures to lay out how the mandatory military custody provision will be carried out. But the administration is telling us, with a unanimous voice from all its senior counterterrorism officials, that this provision is harmful and unnecessary. But we say Congress knows better. I don't believe we do know better, and I think not to listen to those who are really responsible to carry out these missions in what is a very difficult field today, based on a careful assessment of national security, is a mistake.

The administration has threatened to veto this bill and said it ``strongly objects to the military custody provision of section 1032'' in its official Statement of Administration Policy because it would, and I quote, ``tie the hands of our intelligence and law enforcement professionals.'' So here are the experts saying: Don't do this, it will tie our hands; and here is the political branch saying: We know better.

If something had gone wrong, if there had been mistakes, if there hadn't been over 400 cases tried successfully in civilian Federal criminal courts in the last 10 years and 6 cases and a muffed history of military prosecution in these cases, I might agree. But the march is on here in Congress: militarize this thing from stem to stern. And I disagree with that. When something isn't broke, don't fix it.

Mr. President, there are rapid reaction teams part of the HIG--or High-Value Interrogation Group--who can deploy on a moment's notice, who can rapidly assess a suspect, who can carry out a proper and effective interrogation, and the executive branch then has an opportunity to decide whether the facts and the evidence really are best suited for a Federal criminal prosecution in Article III courts, or the facts and the evidence are really best suited for a military commission prosecution.

This flexibility is what we are taking away from the executive branch under the provisions in this bill. It was well practiced during the Bush Presidency, and it has been well practiced by the Obama Presidency. Virtually every national security professional connected to the handling of terrorists and the intelligence obtained from them says to change it would be a mistake. So I believe the amendment I am offering--limiting mandatory military custody to detainees outside the United States--is a major improvement to the underlying bill. It removes the uncertainty that will occur if military custody is required for detainees captured inside the United States.

Frankly, I would prefer that the provision--section 1032--be struck in its entirety, as I don't believe we should be creating a presumption of military custody over the law enforcement route. That is not what this country is about. There is the posse comitatus law on the books. The military isn't supposed be roaming the streets of the United States. But if there is going to be this type of provision, it should at least do no harm to our ability to detain,

interrogate, and prosecute terrorists. So I ask for my colleagues' support on this amendment.

While I am on the Senate floor, I would like to speak briefly to the second amendment I have filed and on which I also seek a vote, since the Udall amendment has failed; that is, amendment No. 1126, which would prohibit U.S. citizens from being held in indefinite detention without trial or charge.

As Members know, section 1031 of the underlying bill updates and restates the authorization for the use of military force that was passed on September 18, 2001, 10 years ago, 1 week after the attacks of 9/11. The provision updates the authority to detain terrorists who seek to harm the United States, an authority that I believe is consistent with the laws of armed conflict. However, I strongly believe that the U.S. Government should not have the ability to lock away its citizens for years, and perhaps decades, without charging them and providing a heightened level of due process. We shouldn't pick up citizens and incarcerate them for 10 or 15 or 20 years or until hostilities end--and no one knows when they will end--without giving them due process of law.

So my amendment simply adds the following language to section 1031 of the underlying bill:

The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of hostilities.

It is hard for me to understand how any Member of this body wouldn't vote for this amendment because, without it, Congress is essentially authorizing the indefinite imprisonment of American citizens without charge or trial.

As I said on the Senate floor previously, 40 years ago Congress passed the Non-Detention Act of 1971 that expressed the will of Congress and the President that America would never repeat the Japanese-American internment experience--something that I witnessed as a child up close and personal--and would never subject any other American to indefinite detention without charge or trial. In the 40 years since President Richard Nixon signed the Non-Detention Act into law, Congress has never made an exception to it.

A key issue in this bill is that this is the Congress making an explicit exception that has never been made before by the Congress, and what we are saying is, it is OK to detain an American citizen without trial, ad infinitum. I don't think it is. I don't think that is what our Constitution is all about. Yet the provision in this bill would do just that.

I ask unanimous consent to have printed in the Record a column published yesterday in the San Jose Mercury News of California from Floyd Mori.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

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Mrs. FEINSTEIN. I know Mr. Mori well. He is the national executive director of the Japanese American Citizens League, which is the oldest and largest Asian-American civil rights organization in the United States. The Japanese American Citizens League--or JACL as we would say--has been an active voice on the wrongful internment of Japanese Americans during World War II, and I believe it is worth listening to what they have observed from that painful history.

The administration has threatened to veto this bill and said the following in its official Statement of Administration Policy:

After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole series of legal questions that will distract from our efforts to protect the country.

Yet by allowing the military to detain U.S. citizens indefinitely, Congress would be opening a great number of serious legal questions, in my judgment.

This amendment would restore the language that was in an earlier version of this bill that would have established a similar ban on the indefinite detention of U.S. citizens. It is also consistent with the way we have conducted the war on terror over the past 10 years. In cases where the United States has detained American citizens, including John Walker Lindh and Jose Padilla, they have eventually been transitioned from indefinite detention to the criminal justice system, and both have been convicted and are serving long prison sentences. John Walker Lindh pleaded guilty to terrorism charges and was given a 20-year sentence, and Jose Padilla was convicted of terrorism conspiracy and sentenced to a 17-year prison sentence.

So I believe this amendment is consistent with past practice and with traditional U.S. values of due process. We are not a nation that locks up its citizens without charge, prosecution, and conviction. My amendment reflects that view, I believe in that view, and I hope this body does as well. So I urge its adoption.

Mr. President, in conclusion, I ask my colleagues' support on these two amendments because I believe they will improve the legislation.

I yield the floor, and I suggest the absence of a quorum.

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