National Defense Authorization Act for Fiscal Year 2012

Floor Speech

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Mr. KIRK. Madam President, I wish to rise in support of the Feinstein-Leahy-Lee legislation. We are taking up the Defense authorization bill with the controversial provisions in it, somewhat protected already by the Feinstein language. But this legislation locks in a fundamental truth that I think is important for our country, and that is as a U.S. citizen inside the territory of the United States, you have inalienable rights under our Declaration of Independence. We are protected pursuant to the U.S. Constitution.

Our Constitution says all crimes, and prosecution thereof, shall be pursuant to a grand jury indictment. There is no exception in the Constitution for that. The Constitution grants a U.S. citizen a trial in the State in which the crime was committed, I think clearly envisioning a civilian trial. We, as Americans, have a right to a speedy trial, not indefinite detention.

We as Americans have a right to a jury of our peers, which I would argue is not enlisted or military personnel sitting in a jury. You cannot search our persons or

our places of business or homes without probable cause under the Bill of Rights. You cannot be deprived of your freedom or your property without due process of law, and that, I would say, is not indefinite detention. All due process guarantees under law are granted to you by the 14th amendment. I would actually argue that no statute and no Senate and no House can take these rights away from you.

It is very important to pass this legislation to prevent needless litigation against constitutional rights, which I regard already as your birthright as an American citizen. It is very important to talk about what the Feinstein legislation does and does not do. I think it is very narrowly crafted to defend the rights of American citizens and resident aliens inside the United States. We agree that aliens who are engaged or captured on foreign battlefields can be subjected to rough justice, battlefield outcomes, or detention and prosecution by the U.S. military.

We even agree that a U.S. citizen such as Anwar al-Awlaki, who took up arms against the United States from his terrorist base, Yemen, is then the proper subject of U.S. military action, and he received that proper attention. Illegal aliens, even inside the United States--we are not engaging on that subject. If they are part of jihad or other warfare against the United States, they can be subjected to military jurisdiction. But with regard to U.S. citizens and resident aliens on U.S. soil, I would argue that the entire point of the Department of Defense is to defend our constitutional rights and to make sure they are honored. If you read the Constitution--and I would urge all Members in this battle to reread it; it is only 5,000 words long--you will see that the rights provided are without qualification and are part of your birthright.

What is the first thing a U.S. Senator, a Member of Congress, or the President does? They swear an oath to the Constitution of the United States. What is the first act any American or resident alien joining the U.S. military does? They don't swear allegiance to a President or a leader or a territory; they swear allegiance to the U.S. Constitution, and that is the mission which they are undertaking to protect.

We see a number of cases cited--as I noted, Ex parte Quirin, the German spy, or U.S. nationals who landed in Long Island and were summarily executed under U.S. military justice. I would say at least they were part of a foreign military and trained in that mission and trying to carry out that mission when that rough justice was put in place.

With regard to Jose Padilla, he was a U.S. citizen--sometimes when I was at the State Department, people would ask me who our Ambassador to Puerto Rico was. Puerto Rico is part of the United States. He was a full member of the country, with U.S. citizenship. He was arrested at O'Hare Airport, but pursuant to executive action was immediately taken into military custody and held in a brig. I regard all of his constitutional rights were then violated. In the subsequent litigation, I think eventually the Bush administration realized they were about to lose this case, which is why they kicked him back into civilian court.

In the Hamdi case, which is so often cited, even there we at least had a foreign connection, foreign training as part of another battlefield. What we are talking about here is very narrow, to make sure at the very least that you, as a U.S. citizen in U.S. territory, are not going to be subjected to indefinite military detention and military justice, that all of your constitutional rights are adhered to.

I would simply ask this--also as a reserve naval officer--what U.S. military officer wants the duty to roll in, for example, to Peoria, IL, and arrest an American citizen for actions that citizen has only done in the United States, not connected to a foreign military or training, and then to put that person through military detention and justice? I would say for the long-term interest of the U.S. military and to protect the U.S. military, we do not want to give that mission to our Armed Forces. A point of common sense should prevail here as well.

We spend billions of dollars on the Department of Homeland Security, which is fully under the fourth and sixth amendments of our constitutional protection. We have an extraordinarily able FBI, ATF, DEA, et cetera, the whole panoply of Federal law enforcement, which, quite properly, is not under the administration of the Pentagon but is instead under the administration of the Department of Justice. We have a vast array of State and local law enforcement all dedicated to protecting the United States but, most importantly, to uphold the very oaths they also take in their first minute as law enforcement officers to protect the U.S. Constitution.

So on this day that we pass the NDAA, which has a murky provision regarding this--somewhat protected by the Feinstein legislation--it is very important for us then to rally behind the further legislative protections here. I think this is strong, bipartisan legislation. I commend Senator Feinstein, Chairman Leahy, and Senator Lee for bringing it forward. No. 1, this will help protect the U.S. military from missions that it should not undertake. No. 2, we will make sure there is clear delineation between the Department of Justice, Homeland Security, and its whole panoply of agencies, and our military, which protects our rights from threat overseas. But, most importantly, No. 3, to defend the U.S. Constitution, your birthright as an American citizen to have these rights to make sure we do not subject any U.S. citizen apprehended inside the United States to indefinite detention under U.S. military authority, knowing they have inalienable birthrights that were granted to them by the U.S. Constitution.

With that, I commend the Chair.

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Mr. KIRK. Madam President, we have two other provisions that are in the National Defense Authorization Act that I want to briefly mention.

First, we have a modified Brooks amendment in the conference report that says if there is any plan to deliver classified missile defense data to the Russians, the administration has to have a 60-day clock expire and then certify to the Congress that none of this data could end up in the hands of third parties, particularly the Iranians or Syrians. I wish to put the administration on notice that that certification probably cannot be made. Dmitry Rogozin, the lead negotiator on the missile defense for their government, has a close and continuing relationship with Iran. He is going to Iran next month. When we see the intelligence sharing and cooperation on missiles and on other weaponry, but especially discussions about a second nuclear reactor in Iran, I think we should all realize that any classified data on U.S. missile defense going to the Russians would be given to the Iranians.
Remember, in missile combat between enemies of the United States and ourselves, everything would be over potentially in a matter of hours. If the Russians accomplish by diplomacy what they have failed to do by espionage, which is getting critical details of U.S. missile defense, and especially missile defenses of Poland and other key allies, we give only a few minutes to a few hours to the U.S. commander to be able to diagnose the problem, understand how he has been penetrated or fooled, and to correct that.

I think that weakens the defenses of the United States significantly.

I had a hold on the nominee for the U.S. Ambassador to Moscow, Michael McFaul. Because of the passage of the modified Brooks amendment and a written letter of assurances given to me by the administration, I have now lifted that hold. I will be supporting his nomination also because he will be good in working with the opposition and human rights communities in Russia.

But I think everyone is now on notice that we should not move forward with any plan to provide classified missile defense data to Russia because it will be shared with the Islamic Republic of Iran, and that is one of the principal threats for which the U.S. and NATO missile defenses are arrayed against.

A second provision which is in the National Defense Authorization Act concerns Iran itself. Senator Menendez and I teamed up on an amendment that also says: If you do business with the Central Bank of Iran, you may not do business with the United States. But we provided critical flexibility to the administration. The amendment is not imposed for weeks, if not months, and two critical waivers are put in the amendment which say, No. 1, if we find a critical shortage in oil markets because of Iran's leading role, sanctions could be delayed if not suspended. Also, there is a general national security waiver put in if something unexpected happens. But, in general, the rule goes forward that we are moving forward on a comprehensive plan to collapse the Central Bank of Iran.

Despite Secretary Geithner opposing the Menendez-Kirk amendment, this body voted 100 to 0 to support that amendment because we know of the International Atomic Energy Agency's report that they may be getting close to having enough fissile material for a nuclear weapon. We know of Iran's support for Hezbollah and Hamas. We know of their oppression of minorities, especially 330,000 Baha'is, who have been prohibited from contracting with the Iranian Government. Kids are not allowed to be in university. We even know of one poor Iranian actress who was sentenced to 90 lashes, later suspended, for simply appearing in an Australian film without a head dress.

The time for action on Iran is now. With the passage of the National Defense Authorization Act and the signature that we now expect from the President, a set of clocks begins, 60- and 180-day clocks. I will be teaming with Senator Menendez and others--in fact, with the entire U.S. Senate that supported this--to make sure we have the toughest action possible to collapse the Central Bank of Iran, which the Treasury Department noted is the central money launderer for that government to support terror and nuclear proliferation.

With that, I yield the floor. Actually, I yield to my colleague from New Hampshire.

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