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National Defense Authorization Act for Fiscal Year 2012

Floor Speech

By:
Date:
Location: Washington, DC

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Mrs. FEINSTEIN. This is important. We spent about half a day on this floor discussing this with Senator Levin, with Senator McCain, in the cloakroom with Senators LEE and PAUL, as well as with a whole host of staff both from the Armed Services Committee as well as the Intelligence and Judiciary Committees. Here is the conclusion: I, and many of my colleagues and legal scholars, believe neither the AUMF nor the provisions of the National Defense Authorization Act that we are considering today constitute such an express authorization to detain American citizens.

As I previously mentioned, I sponsored compromise amendment No. 1456 to the Defense bill when it passed the Senate and that amendment has now become section 1021(e) of the conference report specifically to prevent misrepresentations from providing Congressional intent to support the detention of Americans.

Ex parte Quirin is a 1942 Supreme Court case that upheld the jurisdiction of a U.S. military tribunal that tried several German saboteurs captured inside the United States during World War II and brought to stand trial before the hastily convened military tribunal.

One of the saboteurs, Herbert Hans Haupt, was a U.S. citizen. However, the question at issue in Quirin was not whether a U.S. citizen captured inside the United States could be held indefinitely under the laws of war without trial, but rather, whether such an individual could be held in detention for a matter of weeks pending trial by military commission.

Haupt was, in fact, tried, convicted and sentenced to death within weeks after his capture. Moreover, the Quirin opinion predates the Geneva Conventions, a milestone of rather substantial significance in the development of the law of war, and the decision also predates the Non-Detention Act of 1971.

As Justice Scalia said in his dissent in Hamdi: ``[Quirin] was not [the Supreme] Court's finest hour.''

The only recent case of a U.S. citizen captured inside the United States and held as an enemy combatant under the law of war is that of Jose Padilla.

However, amid considerable legal controversy regarding the legality of his detention, Padilla was ultimately transferred out of military custody and tried and convicted in a civilian court.

Padilla, a U.S. citizen, was arrested in Chicago on May 8, 2002 on suspicion of plotting a dirty bomb attack in the United States. He was initially detained pursuant to a material witness warrant based on the 9/11 terrorist attacks.

On June 9, 2002, two days before a Federal judge was to rule on the validity of continuing to hold Padilla under the material witness warrant, President Bush designated him an ``enemy combatant'' and transferred him to a military prison in South Carolina for detention pursuant to the law of war without charge or trial.

Padilla subsequently filed a petition for a writ of habeas corpus in Federal court challenging the legality of his continued detention and an extended series of appeals ensued.

Facing an impending Supreme Court challenge and mounting public criticism for holding a U.S. citizen arrested inside the U.S. as an enemy combatant, President Bush ordered Padilla transferred to civilian custody to face criminal conspiracy and material support for terrorism charges in Federal court. The criminal charges against Padilla were not, however, related to Padilla's alleged involvement in a dirty bomb plot, which had been the basis for his prior detention as an enemy combatant.

Padilla was subsequently convicted and sentenced to 17 years in prison. That 17-year sentence has since been vacated and is under reconsideration. Thus, the Padilla case is at best inconclusive as to the President's authority to detain a citizen captured inside the United States as an ``enemy combatant.'' More likely, it evidences the folly of such overreaching assertions of Executive power.

Despite my longstanding opposition to the detention provisions in this bill, I will be voting yes on this important legislation. The main reason I support the defense authorization bill is because it ensures our troops deployed around the world--especially those in Afghanistan--have the equipment, resources, and training they need to defend this Nation.

I wish to sum up by quoting Justice Sandra Day O'Connor, writing for the plurality in Hamdi. Here is what she wrote:

As critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.

This is what Senator Kirk, Senator Lee, Senator Paul, and those of us on the Democratic side who have worked on this truly believe. What about the person captured on the corner who looks a certain way, who gets picked up and put into detention? Does that person have the right to a charge and to a trial? Our system of due process and the Constitution of the United States say, simply, yes.

I look forward to working with my colleagues to pass the due process guarantee bill.

I wish to defer to the distinguished Senator from Illinois, Senator Kirk.

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