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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:
Date:
Location: Washington, DC

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AMENDMENT NO. 1126

Mr. CHAMBLISS. Mr. President, I rise in opposition to the second Feinstein amendment, No. 1126, I believe. I have the privilege as serving as vice chairman on the Intelligence Committee with Chairman Feinstein. We have a good working relationship and agree on most every issue that comes before the committee. I know the diligence and seriousness with which she takes every issue but particularly this one.

We have had a number of discussions about the fact that we have a lack of a detainee and interrogation policy in this country now, and I know she is concerned about that and is trying to make the situation better. I remain committed to work with her on a solution.

Unfortunately, I am going to have to oppose her amendment today because of my concerns about the limitation it imposes on the authority to detain Americans who have chosen to wage war against America. My first concern is that it appears, from the debate yesterday, that there is confusion among some Members about what this amendment does. For example, my colleague and friend from Illinois, Senator Kirk, argued that he is in favor of robust and flexible U.S. military action overseas, including against American citizens such as Anwar al-Awlaqi. Senator Kirk said he supports the Feinstein amendment, however, because he believes in a zone of protection for citizens inside the United States.

But the Feinstein amendment does not apply to only those American citizens who commit belligerent acts inside the United States; it would also prohibit the long-term military detention of American terrorists such as Anwar al-Awlaqi, who committed terrorist acts outside the United States. As a result, this amendment would have the perverse effect of allowing American belligerents overseas to be targeted in lethal strikes but not held in U.S. military detention until the end of hostilities. That makes no sense whatsoever.

I am also concerned about the ambiguity in the amendment's language and the uncertainty it will cause our operators, especially those overseas. The amendment exempts American citizens from detention without trial until the end of hostilities. But short of the end of hostilities, the amendment appears to allow detention without trial. Is it the Senator's intent to allow for some long-term detention of Americans without trial?

This is troubling because we don't know how the prohibition will be interpreted by our operators or the courts that will hear inevitable habeas challenges. Would the military be permitted to hold a captured belligerent for a month, a few months, or a few years, as long as it was not until the end of hostilities? Or would the military interpret the amendment as a blanket prohibition against military detention of Americans for any period of time? If the military rounded up American terrorists such as Adam Gadahn or Adnan Shukrijumah among a group of terrorists, would they have to let these Americans go because the military would not be permitted to detain them? Would more American belligerents be killed in strikes if capture-and-detain operations were perceived to be unlawful? I don't believe we can leave our operators with this kind of uncertainty.

Finally, we should all remember the provisions of the National Defense Authorization Act do not provide for a new authority to hold U.S. citizens in military detention. American citizens can be held in military detention under current law. Contrary to some claims that were made yesterday and debated on this floor, these Americans would be given ample due process through their ability to bring habeas corpus challenges to their detention in Federal court. The Supreme Court has held in the Hamdi case that the detention of enemy combatants without the prospect of criminal charges or trial until the end of hostilities is proper under the AUMF and the Constitution. Hamdi is a U.S. citizen. This is not a new concept. In reaching its decision, the Hamdi Court cited the World War II case, Ex parte Quirin, in which the Supreme Court held:

[C]itizenship in the United States as an enemy belligerent does not relieve him from the consequences of a belligerency.

In conclusion, I understand Senator Feinstein's motivation, but I just don't believe this amendment does what she wants it to do, and there will be unintended consequences that could seriously hamper overseas capture operations. Mr. President, I urge my colleagues to oppose the Feinstein amendment.

Mr. President, I yield the floor.

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