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National Defense Authorization Act for Fiscal Year 2013

Floor Speech

Location: Washington, DC


Mr. AMASH. I have a tremendous amount of respect for my colleagues, Mr. Gohmert and Mr. Landry and Mr. Rigell. I think their amendment is very well intentioned, and they care very deeply about this issue. I've had many conversations with them about it.

But the first part of the amendment does nothing. It says the AUMF does not deny habeas corpus or any constitutional rights for any person who is detained in the United States who is otherwise entitled to the availability of habeas corpus or such constitutional rights. In other words, if you have constitutional rights, you have constitutional rights.

The second part of the amendment might be harmful. It says:

Persons detained by the military are allowed to file a habeas petition not later than 30 days after the date on which such person is placed in military custody.

First, the Constitution already gives detainees the power to file a habeas at the moment they are detained. At best, the 30-day window does nothing; and at worst, it can be read to allow the government to deny habeas for 29 days or to deny habeas if the petitioner didn't file until after 30 days.

So I would like to express my disapproval of the amendment.


Mr. AMASH. Mr. Chair, the frightening thing here is that the government is claiming the power under the Afghanistan Authorization for Use of Military Force as a justification for entering American homes to grab people, indefinitely detain them, and not give them a charge in a trial. That's the frightening thing. That's the thing that the Smith-Amash amendment fixes. It's the only amendment that does it.

I sometimes hear this strange argument that the Constitution applies only to citizens, not persons. If you read the Fifth and 14th Amendments, it applies to persons. Those are the amendments that provide for due process. James Madison said the Constitution applies to persons. And logic dictates that the Constitution applies to persons. It applies to noncitizens.

Is the government allowed to make noncitizens worship a State religion? Is the government allowed to take noncitizens' property without compensation? Can the government quarter troops in noncitizens' homes? Can the government conduct unreasonable searches and seizures on noncitizens' homes? Of course not. That's ridiculous. Everybody here understands that's ridiculous. No one disputes that all persons in the U.S. are covered by the Constitution.

HASC claims to protect persons. The House Armed Services Committee in the NDAA claims to protect persons with respect to habeas. The Gohmert amendment claims to protect persons, not citizens. And the Smith-Amash amendment protects persons. It's a phony argument.

The Smith-Amash amendment is the only amendment that will protect citizens.


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