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National Defense Authorization Act for Fiscal Year 2013 - Continued

Floor Speech

Location: Washington, DC


Mr. LEE. Mr. President, I appreciate the opportunity to speak regarding amendment No. 3018, the Feinstein-Lee amendment.

It has come to my attention that some opponents of the Feinstein-Lee amendment have made an argument that habeas corpus is sufficient to protect the rights of Americans apprehended on American soil and detained by the United States Government. This is nothing more than another way of suggesting that the government should be able to detain some Americans indefinitely without charge or trial. I disagree and believe that our constitutional traditions demand more than this--significantly more.

The fifth amendment of our Constitution provides that ``No person ..... shall be ..... deprived of life, liberty, or property without due process of law.''

As Supreme Court Justice Antonin 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.

This right of American persons to due process of law is foundational to the very idea of individual liberty from unwarranted government intrusion.

I have worked with Senator Feinstein and other colleagues on both sides of the aisle to craft an amendment originally entitled the Due Process Guarantee Act to ensure that this basic constitutional right is indeed protected. I believe even with the serious national security threats we now face, America must hold fast to our most fundamental constitutional rights and liberties.

The U.S. Government should not be authorized to detain Americans indefinitely without charge and without trial. As Justice Scalia explained, the proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal.

I believe it is clear that the Founders of our Constitution were acutely aware of this critical tradeoff--the tradeoff we still face today--between safety on the one hand and freedom on the other. On this very point, Alexander Hamilton was prescient. He wrote:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and their political rights. To be more safe they, at length, become willing to run the risk of being less free.

Our Nation's Founders warned us about the great danger of sacrificing our most basic liberties in the pursuit of security--security at all costs. They provided us with a Constitution framed to prevent precisely such a tragic outcome.

I urge my colleagues to vote in favor of the Feinstein-Lee amendment and against the mistaken idea that the government may detain American persons indefinitely without charge and without trial.

Thank you, Mr. President. I yield back the remainder of my time to Senator Feinstein.


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