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Hearing of the House Judiciary Committee - "Protecting U.S. Citizens' Constitutional Rights During the War on Terror"


Location: Washington, DC

I want to welcome everyone to today's hearing on "Protecting U.S. Citizens' Constitutional Rights During the War on Terror."

On September 18, 2001, Congress enacted the Authorization for the Use of Military Force (AUMF), which empowered the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks," in order to prevent "any future acts of international terrorism against the United States."

Section 1021 of the FY 2012 NDAA reaffirms the President's authority to detain so called enemy combatants by "affirm[ing] that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war."

The law defines "covered person" as either "[a] person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks" or "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

It defines "disposition under the law of war" to include (1) "[d]etention under the law of war without trial until the end of the hostilities," (2) trial by military commission, (3) trial by "an alternative court or competent tribunal having lawful jurisdiction," and (4) "[t]ransfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity."

A number of members from both sides of the aisle have expressed extreme discomfort and even outrage at the notion that a United States citizen apprehended on United States soil can potentially be held indefinitely under this act without receiving their full panoply of rights guaranteed under the Constitution. I, for one, share this concern.

I support making it clear that United States citizens apprehended and detained in the United States pursuant to the AUMF or NDAA should be transferred for trial and proceedings by a court established under Article III of the Constitution or by an appropriate State court and that such trial and proceedings have all the due process as provided for under the Constitution of the United States. I intend to explore avenues through this committee to achieve a similar result.

I am not persuaded by those who say that in practice this administration and future administrations will not exercise their authority to indefinitely detain U.S. citizens who have been apprehended in the United States. The mere notion that this authority exists is troubling in and of itself and I believe that this body should make clear that citizens of this nation cannot be detained without receiving all of their due process rights in an Article III court.

In an attempt to address the concerns of those of us who were troubled by the indefinite detention authority under the AUMF, the FY 2013 NDAA included language reaffirming the availability of the writ of habeas corpus for any person detained in the United States pursuant to the 2001 AUMF or the FY 2012 NDAA.

While this provision is a step in the right direction, it does not go far enough to ensure that Americans are receiving all of the due process rights the Constitution confers. For instance, the petitioner is placed at a disadvantage vis-a-vis the government when petitioning for a writ of habeas corpus. Hearsay evidence is permissible against the detained individual and the government enjoys a rebuttable presumption that its evidence is accurate and authentic. So essentially a U.S. citizen has the burden of proving he or she is not an enemy combatant in order to escape indefinite detention, rather than the other way around. To most Americans, this would seem unfair.

As we begin consideration of the FY 2014 NDAA, it is my sincere hope that we can fully confront these important issues and finally put them behind us keeping in mind that we should never sacrifice our freedom for our security. For if we do, as Ben Franklin correctly pointed out, we will not have either one.

I look forward to hearing from today's witnesses.

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