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Public Statements

National Defense Authorization Act for Fiscal Year 2013

Floor Speech

Location: Washington, DC


Mr. LEE. Mr. President, I rise today to speak in favor of the Feinstein-Lee amendment to the National Defense Authorization Act. At the outset, I wish to note this amendment is the product of bipartisan discussion and collaboration on an issue that is important to all Americans. I am pleased to have been a part of that process.

Senator Feinstein and I have worked closely together over the course of the past year to craft what we believe represents a very prudent course in protecting both our Nation and our liberties at the same time. Security is important. And precisely because it is important it must not be acquired at the expense of our individual liberty. It may well be said that government's most important basic responsibility is to protect the liberties of its citizens. Our Nation has fought wars on American soil and around the world in defense of individual liberty, and we must not sacrifice this most fundamental right in pursuit of greater security, especially when we can achieve security without compromising liberty.

The Feinstein-Lee amendment does precisely that. It protects liberty by ensuring that no American will be deprived of due process. The fifth amendment states:

No person ..... shall be deprived of life, liberty or property, without due process of law.

The sixth amendment, likewise, guarantees that individuals accused of a crime will have access to an attorney and access to a trial by a jury consisting of that person's peers. Our amendment protects those rights and it provides the following:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.

It is important to note the Supreme Court has never specifically held that an authorization for the use of military force somehow authorizes the indefinite detention of a U.S. citizen or a U.S. person apprehended within the United States, and I don't think we should break new ground here. I don't think we should start opening that precedent and suggest that is somehow acceptable. The Constitution does, in fact, require nothing less than traditional due process for all Americans apprehended within the United States.

As Supreme Court Justice Anthony Scalia has written:

The gist of the Due Process Clause, as understood at the founding and since, was to force the government to follow ..... common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial.

I understand and respect, of course, the fact that we live in perilous times. We, unfortunately, as Americans have enemies not only around the world but even within our own borders. This is unfortunate. This creates challenging times for us. I hope and pray every day we will be successful in fending off those who would harm us, those who hate our way of life and everything about us and will do everything in their power to destroy us and our liberty. But that does not--it cannot, it will not--mean we, as Americans, should surrender our basic instinct to be free.

We must stand behind our 225-year-old founding document as it has been amended to ensure that our liberty isn't taken away from us to give us a path toward providing for our security without jeopardizing the freedom our American citizens cherish so much and have fought so hard and for so long to protect.

Granting the U.S. Government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our Nation's great constitutional values. This amendment--the Feinstein-Lee amendment--protects those values. I urge my colleagues to support it.

Mr. President, I yield the floor.


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