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Public Statements

National Defense Authorization Act for Fiscal Year 2013

Floor Speech

Location: Washington, DC


Ms. COLLINS. Mr. President, I rise to speak in support of the amendment offered by Senator Feinstein. The purpose of our amendment is to make clear that a U.S. citizen or legal permanent resident arrested in this country cannot be detained indefinitely without charge or trial. This amendment is necessary because current law with respect to the indefinite detention of U.S. citizens within the United States remains unclear after more than 11 years of a persistent conflict in which the enemy often does not distinguish itself from civilians.

Without this amendment, it is conceivable that an American citizen could be arrested, detained, and held without charge or trial in order to address the gap in the law. Our amendment is necessary.

Last year the fiscal year 2012 National Defense Authorization Act defined the scope of the detention authority provided under the 2001 Authorization for Use of Military Force for detainees captured outside the United States. But the scope of detention authority, as it relates to U.S. citizens and lawful residents captured or arrested inside the United States, was left nebulous.

Because of this legal ambiguity, despite the guarantees enshrined in our Constitution, an American citizen could be indefinitely detained without charge or trial, even if they are detained in the United States.

I do not believe that many of us intended to authorize such a sweeping detention authority within the United States when we voted to allow our military to pursue al-Qaida following the 9/11 attacks.

Because Congress was responsible for authorizing the use of military force in the first place, it is our duty, our obligation, to define carefully the scope of the detention authority we intended in the AUMF. If we do not clarify this important issue, the Federal courts and the executive branch will be left to substitute their judgment for ours. This amendment specifically addresses the issue of American citizens and lawful permanent residents detained in the United States, and it would clarify that it is not the intention of the Congress to allow for their indefinite detention.

Let me briefly mention what the Feinstein-Collins amendment does not do.

First, it does not change the ruling in Hamdi v. Rumsfeld. In that case, the Supreme Court ruled that an American citizen who wages war against U.S. troops in an active combat zone can be taken into preventive detention in order to keep that person from continuing to wage war overseas against American military forces.

When an American citizen leaves this country to wage war against his fellow citizens, he relinquishes certain rights, otherwise supported by the Constitution, and I agree with the Court's decision in this case.

Next, this amendment does not preclude intelligence gathering subsequent to a suspected terrorist being taken into detention.

The intelligence gathered from a suspect in the hours or days after his arrest can be vital to preventing further acts of violence or in uncovering terrorist networks at home or abroad. This amendment balances the ability to gather this important information with the suspect's rights by providing some flexibility within the Constitution's bounds.

For example, it does not circumscribe the existing public safety exception to Miranda. This exception permits law enforcement, in certain circumstances, to engage in a limited and focused unwarned interrogation and allows the government to introduce the statement as direct evidence in a judicial proceeding. Law enforcement officials, confronted with an emergency, may question a suspect held in custody about an imminent threat to public safety without providing Miranda warnings first.

In addition, nothing precludes other Federal agents from gathering intelligence without providing Miranda rights. Under current law, a U.S. citizen cannot be tried in a military tribunal, and that does not change under our amendment.

Finally, this amendment does not change the treatment of those who are here on temporary visas, such as students or travelers--the kind of visas that were used by the 9/11 terrorists.

In closing, let me talk about how this amendment would have changed the treatment of some U.S. citizens detained under the authorization for use of military courts during the last 11 years had it become law.

First, because this amendment only covers American citizens captured in the United States, it would not have affected the detention of John Walker Lindh, for example. So the only U.S. citizen affected by this amendment would have been Jose Padilla. If this amendment were the law, Jose Padilla's detention would have ended as it did under the Bush administration--in a Federal courtroom, where he was charged with aiding terrorists in a terrorist organization.

Since 2001 terrorism has claimed far too many victims, both abroad and here in our country. But it is crucially important that in pursuing the war on terrorism, we must assure our fellow citizens their constitutional rights--the very foundation of what makes us Americans. For this reason, I am proud to be a cosponsor of Senator Feinstein's amendment, and I strongly urge its adoption.


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