[Congressional Record Volume 158, Number 150 (Wednesday, November 28, 2012)]
[Pages S6995-S7031]


  The ACTING PRESIDENT pro tempore. The clerk will report the bill by 
  The assistant legislative clerk read as follows:

       A bill (S. 3254) to authorize appropriations for fiscal 
     year 2013 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 


  Mrs. FEINSTEIN. Madam President, I thank the distinguished chairman.
  I am going to offer an amendment--a version of it was introduced as a 
separate bill last year as S. 2003. The cosponsors of the amendment are 
Senators Paul, Lee, Coons, Collins, Lautenberg, Gillibrand, and Kirk. I 
ask unanimous consent to add Senators Tester, Johnson of South Dakota, 
Sanders, Whitehouse, and Heller as cosponsors to the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. This amendment is almost identical to the bill I 
introduced a year ago. That bill has a bipartisan group of 30 
cosponsors. It is called the Due Process Guarantee Act, and the co-
sponsors include five Republicans: Senators Lee, Paul, Collins, Kirk, 
and Moran. Thanks to Chairman Leahy, the bill had a hearing earlier 
this year in the Judiciary Committee, as the Presiding Officer will so 
note, on February 29, 2012.
  The amendment I will offer clarifies questions that arose during last 
year's defense authorization bill about the U.S. Government's power to 
detain its citizens indefinitely. Last year's bill had detention 
provisions in it that never had a hearing in the Judiciary Committee, 
the Intelligence Committee, or the Armed Services Committee.
  Let me just take a minute to describe why this is such an important 
issue for me.
  When I was a very young girl--I remember it was a Sunday because my 
father worked every other day of the week--my father took me down to a 
racetrack just south of San Francisco

[[Page S7019]]

called Tanforan. It was the beginning of World War II. The racetrack 
was then a staging point for Japanese Americans en route to more 
permanent detention centers.
  Here is the edict that was put out:

       Western Defense Command and Fourth Army Wartime Civil 
     Control Administration, Presidio of San Francisco, 
     California, April 1, 1942, Instructions to All Persons of 
     Japanese Ancestry, Living in the Following Area:

  Then it describes the area. It says:

       All Japanese persons, both alien and non-alien, will be 
     evacuated from the above designated area by 12:00 o'clock 
     noon Tuesday, April 7, 1942.
       No Japanese person will be permitted to enter or leave the 
above described area after 8:00 a.m., Thursday, April 2, 1942, without 
obtaining special permission from the Provost Marshal of the Civil 
Control Station.

  This was an order which remanded all persons of Japanese ancestry 
into custody for the duration of World War II.
  Let me show you a little of what these facilities looked like. Shown 
in this picture I have in the Chamber is Tanforan Racetrack, and these 
are the barracks that were put up to house Japanese-American citizens 
and non-citizens--only because they were of Japanese ancestry.
  In this next picture, this is what it looked like close up. This is a 
young person walking out of this small cell in that barrack.
  In this next picture, these are Japanese Americans standing in line--
and here is the racetrack--either to get food or for some other reason.
  This stuck in my memory, and I believe it was a stain on the 
greatness of this country. As I saw the barbed wire, these men, women, 
and children housed in horse stables, in small buildings, as you can 
see, it was an experience I will never forget.
  To ensure that this shameful experience was never repeated, almost 30 
years after the 1942 evacuation order was issued, Congress passed and 
President Nixon signed into law the Non-Detention Act of 1971, which 
repealed a 1950 statute that explicitly allowed detention of U.S. 
citizens without charge or trial.
  The Non-Detention Act of 1971 clearly states:

       No citizen shall be imprisoned or otherwise detained by the 
     United States except pursuant to an act of Congress.

  Despite this history, during last year's debate on the Defense 
authorization bill some in this body advocated for the indefinite 
detention of American citizens. This is an issue that has been the 
subject of much legal controversy since 9/11.
  Proponents of indefinitely detaining citizens apprehended in the U.S. 
argue that the Authorization for Use of Military Force--what we call 
the AUMF--that was enacted in the wake of 9/11 is ``an act of 
Congress,'' in the language of the Non-Detention Act, that authorizes 
the indefinite detention of American citizens regardless of where they 
are captured.
  They further assert that their position is justified by the U.S. 
Supreme Court's plurality decision in the 2004 case of Hamdi v. 
Rumsfeld. However, that position is undercut by the 2003 case of 
Padilla v. Rumsfeld in the Second Circuit Court of Appeals. So we have 
a kind of muddle.
  But let me discuss the facts of the Hamdi case because it is 
important to note that Yaser Esam Hamdi was a U.S. citizen who took up 
arms on behalf of the Taliban and was captured on the battlefield in 
Afghanistan. The Supreme Court effectively did uphold his military 
detention, so some of my colleagues seize upon this to say that the 
military can today indefinitely detain even U.S. citizens who are 
arrested domestically.
  However, the Supreme Court's opinion in that case was a decision by a 
4-to-4 plurality that recognized the power of the government to detain 
U.S. citizens captured abroad as ``enemy combatants'' for some period, 
but otherwise repudiated the government's broad assertions of executive 
authority to detain citizens without charge or trial.
  To the extent the Hamdi case permits the government to detain a U.S. 
citizen ``until the end of hostilities,'' it does so only under a very 
limited set of circumstances; namely, citizens taking an active part in 
hostilities who are captured in Afghanistan and who are afforded 
certain due process protections, at a minimum.
  Additionally, decisions by the lower courts have contributed to the 
current state of ambiguity. For example, consider those decisions 
involving Jose Padilla, a U.S. citizen who was arrested in Chicago. He 
was initially detained pursuant to a material witness warrant based on 
the 9/11 terrorist acts.
  In Padilla, the Second Circuit held that AUMF did not authorize his 
detention, saying:

       We conclude that clear congressional authorization is 
     required for detentions of American citizens on American soil 
     because . . . the Non-Detention Act . . . prohibits such 
     detentions absent specific congressional authorization.

  The Second Circuit went on to say that the 2001 Authorization for Use 
of Military Force--and I quote--``is not such an authorization, and no 
exception to [the Non-Detention Act] otherwise exists.''
  So here is the problem. We have the Supreme Court that says one thing 
in a limited way and a federal appeals court that says another thing on 
an issue not directly addressed by the Supreme Court. When we debated 
this issue on the Senate floor last year, the Senate ultimately agreed 
to a compromise amendment which passed by an overwhelming 99-to-1 vote. 
I worked on that with Senators Lee, Paul, Levin, McCain, Durbin, Leahy, 
and the amendment provided the following:

       Nothing in this section shall be construed to affect 
     existing law or authorities relating to the detention of 
     United States citizens, or lawful resident aliens of the 
     United States, or any other persons who are captured or 
     arrested in the United States.

  Now, that was adopted to say, leave things as they are right now. It 
preserved the current state of the law, continuing to leave it to the 
courts to resolve who is right about whether the AUMF authorizes the 
military detention of anyone apprehended domestically.
  I believe strongly the time has come now to end this legal ambiguity 
and to state clearly once and for all that the AUMF or other 
authorities do not authorize such indefinite detention of Americans 
apprehended in the United States.
  To accomplish this, we are offering an amendment which affirms the 
continuing application of the principles behind the Non-Detention Act 
of 1971. It amends that act to provide clearly that no military 
authorization allows indefinite detention of U.S. citizens or green 
card holders who are apprehended inside the United States.
  The amendment states, ``An authorization to use military force, a 
declaration of war, or any similar authority shall not authorize the 
detention without charge or trial of a citizen or lawful permanent 
resident of the United States apprehended in the United States unless 
an Act of Congress expressly authorizes such detention.''
  That affirms the Second Circuit's clear statement rule from the 
Padilla case. Some may ask why this amendment protects green card 
holders as well as citizens. Others may ask why the amendment does not 
protect all persons apprehended in the United States from indefinite 
detention? Let me be clear. I would support providing the protections 
in this amendment to all persons in the United States whether lawfully 
or unlawfully present.
  But the question is, Is there enough support in this body to expand 
this amendment to cover others besides U.S. citizens and green card 
holders? I do not believe there is. We got 45 votes last year on a 
similar amendment protecting U.S. citizens. We have re-worked the 
amendment and gained more support this year, as reflected in the co-
sponsors we have today. So my hope is that at least we can clear up the 
law with strong protections for citizens and legal permanent residents.
  Wherever we draw the line on who should be covered by this 
legislation, I believe it violates fundamental American rights to allow 
anyone apprehended in the United States to be detained without charge 
or trial. The FBI and other law enforcement agencies have proven time 
and time again they are up to the challenge of detecting, stopping, 
arresting, and convicting terrorists found on U.S. soil, having 
successfully arrested, detained, and convicted hundreds of these 
heinous people, both before and after 9/11.
  For example, since January 2009, 98 individuals have been 
successfully arrested inside the United States by the

[[Page S7020]]

FBI and other Federal or local law enforcement officers on terrorism-
related charges. Last month, the staff of the Senate Intelligence 
Committee compiled a list of the individuals arrested in the past 4 
years as part of more than 50 different terrorism investigations. The 
list was based on publicly available information from the FBI, the 
Congressional Research Service, and media reports. I have it here and I 
ask unanimous consent to have the list printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Terrorist Arrests and Plots Stopped in the United States 2009-2012

  (Compiled by Senate Intelligence Committee staff based on publicly 
available information from the FBI, the Congressional Research Service, 
                           and media reports)

       (1) Ralph Deleon, (2) Miguel Alejandro Santana Vidriales 
     (Santana), (3) Arifeen David Gojali--Conspiracy to Provide 
     Material Support to Terrorism--November 2012.
       On Friday, November 16, 2012, the FBI arrested Deleon, 
     Santana, and Gojali who were planning to travel to 
     Afghanistan to attend terrorist training and commit violent 
     jihad. Deleon, of Ontario, California, is a lawful permanent 
     resident alien, born in the Philippines. Santana, of Upland, 
     California, is a lawful permanent resident, born in Mexico, 
     and whose application for citizenship is pending in the U.S. 
     Gojali, of Riverside, California, is a United States citizen. 
     According to a criminal complaint filed in U.S. District 
     Court in the Central District of California, the defendants 
     conspired to provide material support to terrorists knowing 
     or intending that such support was to be used in preparation 
     for or in carrying out: conspiracy to kill, kidnap, maim, or 
     injure persons and damage property in a foreign country; 
     killing and attempting to kill officers and employees of the 
     United States; killing nationals of the United States; 
     conspiracy to use a weapon of mass destruction outside the 
     United States; and bombing places of public use and 
     government facilities. The complaint further alleges that 
     Santana, Deleon, and Gojali conducted preliminary training in 
     southern California at firearms and paintball facilities to 
     prepare for terrorist training overseas.
       (4) Quazi Mohammad Rezwanul Ahsan Nafis--Plot to Bomb New 
     York Federal Reserve Bank--October 2012.
       On October 17, 2012, the FBI arrested Ahsan Nafis, a 
     Bangladeshi national, as he attempted to detonate what he 
     believed to be a 1,000-pound bomb at the New York Federal 
     Reserve Bank in lower Manhattan's financial district. The 
     defendant faces charges of attempting to use a weapon of mass 
     destruction and attempting to provide material support to Al 
     Qaeda. According to an FBI press release, the accused, 
     ``traveled to the United States in January 2012 for the 
     purpose of conducting a terrorist attack on U.S. soil. Nafis, 
     who reported having overseas connections to Al Qaeda, 
     attempted to recruit individuals to form a terrorist cell 
     inside the United States. Nafis also actively sought out Al 
     Qaeda contacts within the United States to assist him in 
     carrying out an attack.''
       (5) Adel Daoud--Plot to Bomb Downtown Chicago Bar--
     September 2012.
       On Friday September 14, 2012, Adel Daoud attempted to 
     detonate what he believed to be a car bomb outside a bar in 
     downtown Chicago. Daoud, a U.S. citizen, was arrested as part 
     of an ongoing FBI counterterrorism operation after he was 
     discovered on the Internet seeking information on how to 
     conduct terrorist attacks. According to an FBI press release, 
     ``In about May 2012, two FBI online undercover employees 
     contacted Daoud in response to material Daoud posted online 
     and thereafter exchanged several electronic communications 
     with Daoud. According to the affidavit, during these 
     communications Daoud expressed an interest in engaging in 
     violent jihad, either in the United States or overseas.''
       (6) Douglas L. Wright, (7) Brandon L. Baxter, (8) Anthony 
     Hayne, (9) Connor C. Stevens, and (10) Joshua S. Stafford--
     Plot to Bomb Brecksville-Northfield High Level Bridge in 
     Ohio--May 2012.
       These five men were arrested on May 1, 2012 after they 
     attempted to detonate an explosive device set on the 
     Brecksville-Northfield High Level Bridge in Ohio that was 
     given to them by an undercover FBI agent. The accused men are 
     self-proclaimed anarchists who considered carrying out a 
     series of attacks, but ultimately decided to target the 
     bridge in Ohio after an initial plot to use smoke grenades to 
     distract law enforcement in order for co-conspirators to 
     topple financial institution signs atop high rise buildings 
     in downtown Cleveland failed to materialize. ``The defendants 
     conspired to obtain C-4 explosives contained in two 
     improvised explosive devices to be placed and remotely 
     detonated,'' according to the complaint.
       (11) Bakhtiyor Jumaev and (12) Jamshid Muhtorov--Conspiracy 
     to Provide Material Support to the Islamic Jihad Union 
     (IJU)--March 2012.
       On March 15, 2012, the FBI arrested Bakhtiyor Jumaev who 
     was charged with one count of conspiracy to provide material 
     support to the Islamic Jihad Union (IJU). The FBI had been 
     conducting an investigation into the activities of Jumaev and 
     his associate, Jamshid Muhtorov, who was arrested in January 
     2012 on similar charges. Jumaev and Muhtorov had pledged 
     support for the IJU and Jumaev sent funds to Muhtorov, 
     specifically intended for the IJU. The U.S. Government has 
     designated the IJU as a Foreign Terrorist Organization.
       (13) Amine El Khalifi--Plot to carry out a Suicide Bomb 
     Attack against the U.S. Capitol--February 2012.
       Amine El Khalifi, an illegal immigrant from Morocco, was 
     arrested on February 17, 2012 for attempting to detonate a 
     bomb in what was envisioned to be a suicide attack against 
     the U.S. Capitol Building. According to an FBI press release, 
     ``El Khalifi allegedly traveled to a parking garage near the 
     U.S. Capitol building. El Khalifi took possession of a MAC-10 
     automatic weapon and put on a vest containing what he 
     believed to be a functioning bomb. Unbeknownst to El Khalifi, 
     both the weapon and the bomb had been rendered inoperable by 
     law enforcement. El Khalifi walked alone from the vehicle 
     toward the United States Capitol, where he intended to shoot 
     people and detonate the bomb. El Khalifi was arrested and 
     taken into custody before exiting the parking garage.'' The 
     FBI made initial contact with Khalifi in January 2011. Over 
     the course of the year he cited his anger over the ``war on 
     terrorism'' and the ``war on Muslims'' as his rationale 
     behind planned attacks against a military installation and a 
     restaurant in Washington D.C. After acquiring and testing 
     dummy explosives given to him by FBI affiliates, Khalifi 
     modified his plans to conduct a suicide attack against the 
     U.S. Capitol.
       (14) Sami Osmakac--Plot to Bomb Locations in Tampa, 
     Florida--January 2012.
       On January 7, 2012, the FBI arrested Sami Osmakac, a 
     naturalized U.S. citizen born in the former Yugoslavia 
     (Kosovo) on one count of attempted use of a weapon of mass 
     destruction. The FBI used a sting operation to apprehend 
     Osmakac who was 25 years old at the time of his arrest. 
     According to FBI investigators, in September 2011, an FBI 
     source reported that Osmakac and another person had asked for 
     Al Qaeda flags at the source's business. The source continued 
     to interact with Osmakac and report to the FBI about his 
     activities. Osmakac allegedly expressed interest in 
     obtaining firearms and explosives for attacks he was 
     planning in the Tampa area, and the source introduced him 
     to an FBI undercover employee reputed to have access to 
     such materials. The undercover employee supplied Osmakac 
     with hand grenades, an assault rifle, a pistol, a car 
     bomb, and an explosive belt. Osmakac was unaware that the 
     items actually did not work. In the course of his plotting 
     Osmakac purportedly discussed targets such as ``night 
     clubs in the Ybor City area of Tampa, the Operations 
     Center of the Hillsborough County Sheriff's Office in Ybor 
     City, and a business in the South Tampa,'' according to a 
     DOJ press release. Muslims in Tampa reportedly aided the 
     FBI in its investigation. Osmakac purportedly exhibited 
     extremist views prompting at least one local Muslim to 
     tell authorities about him.
       (15) Jose Pimentel--Plot to Bomb New York City Targets and 
     Troops Returning from Combat Overseas--November 2011.
       On November 19, 2011, New York City police arrested a 
     convert to Islam named Jose Pimentel on terrorism charges. 
     According to New York City Police Commissioner Raymond W. 
     Kelly, Pimentel purportedly discussed killing U.S. military 
     personnel returning home from Iraq and Afghanistan, in 
     conjunction with bombing post offices in and around 
     Washington Heights and police cars in New York City, as well 
     as a police station in Bayonne, N.J. The alleged would-be 
     bomber was building explosive devices when he was arrested 
     after two years of surveillance by the New York City Police 
     Department (NYPD). Pimentel reportedly discussed his plans 
     with an individual he did not know was an NYPD criminal 
     informant. Pimentel sympathized with Al Qaeda and drew 
     inspiration from now-deceased radical cleric Anwar al-Awlaki. 
     The alleged would-be bomber purportedly tried but failed to 
     correspond with Awlaki via e-mail, and the cleric's death may 
     have sped up Pimentel's plotting. According to the criminal 
     complaint filed in the case, the NYPD tracked Pimentel's 
     internet activity, finding that Pimentel had posted online 
     pro-Al Qaeda material as well as an article detailing how to 
     make a bomb from Inspire Magazine. Working in the apartment 
     of an NYPD criminal informant, Pimentel supposedly followed 
     Inspire's bomb making instructions, scraping match heads, 
     collecting the incendiary material, as well as drilling holes 
     in three pipes, among other steps.
       (16) Mansour Arbabsiar--Plot to Assassinate the Saudi 
     Ambassador to the United States--October 2011.
       Mansour Arbabsiar was arrested after he approached a DEA 
     informant, who he believed was a member of Los Zetas, to hire 
     the cartel to carry out a terrorist attack against the Saudi 
     ambassador at a restaurant in Washington. Mr. Arbabsiar had 
     many connections to Iran's military and the Qods Force.
       (17) Rezwan Ferdaus--Plot to Attack U.S. Capitol and 
     Pentagon--September 2011.
       On September 28, Rezwan Ferdaus, a U.S. citizen from 
     Ashland, MA, was arrested on terrorism charges. He allegedly 
     plotted to attack the Pentagon and the U.S. Capitol with 
     explosives-laden remote-controlled airplanes. According to 
     DOJ, he also planned a ground assault in conjunction with his 

[[Page S7021]]

     attack, intending to use firearms and to involve six 
     conspirators in this phase of his plot. Ferdaus also 
     purportedly attempted to provide Al Qaeda with modified cell 
     phones he believed would be used as detonators for improvised 
     explosive devices intended to harm U.S. soldiers abroad. As 
     described by DOJ, FBI undercover employees acting as members 
     of Al Qaeda supplied Ferdaus with money, fake explosives for 
     the airplanes, firearms, and hand grenades. In turn, (among 
     other things) Ferdaus provided the cell phone detonators to 
     these phony Al Qaeda recruiters as well as a training video 
     on how to construct them. Ferdaus supposedly began plotting 
     in 2010. In January 2011, he discussed his plans with an FBI 
     informant. In May 2011, he visited the Washington, DC, area 
     to conduct surveillance of his targets and view the site from 
     which he intended to launch his remote-controlled airplanes. 
     According to the FBI, Ferdaus believed that one of his 
     airplanes could collapse the Capitol dome.
       (18) Agron Hasbajrami--Plot to Fight in Pakistan--September 
       On September 6, 2011, Agron Hasbajrami was arrested at John 
     F. Kennedy International Airport in New York City as he tried 
     to board a flight to Turkey. Hasbajrami allegedly planned to 
     join a jihadist fighting group in the Federally Administered 
     Tribal Areas of Pakistan. He also purportedly sent more than 
     $1,000 to Pakistan to support the efforts of a militant with 
     whom he communicated.
       (19) Naser Abdo--Plot to Attack Targets Near Fort Hood--
     July 2011.
       On July 27, 2011, U.S. Army Private Naser Abdo was arrested 
     near Fort Hood in Texas for allegedly plotting a shooting 
     spree and bombing in the area--near the same place where Army 
     Major Nidal Hasan reportedly killed 13 individuals in 2009. 
     Abdo, described in the media as a Muslim soldier in the 101st 
     Airborne Division at Fort Campbell, KY, was supposedly absent 
     without leave from the Army after applying for conscientious 
     objector status. A November 2011 superseding indictment 
     charged Abdo with one count of attempted use of a weapon of 
     mass destruction, one count of attempted murder of officers 
     or employees of the United States, two counts of possession 
     of a firearm in furtherance of a federal crime of violence, 
     and two counts of possession of a destructive device in 
     furtherance of a federal crime of violence. Abdo allegedly 
     purchased gunpowder, shotgun ammunition, and a magazine for a 
     semi-automatic pistol at a gun store near Fort Hood. An 
     employee at the gun store supposedly brought Abdo to the 
     attention of law enforcement officers. Federal officials have 
     noted that Abdo also possessed a .40 caliber handgun, bomb 
     making materials, and an article on how to construct an 
     explosive device, among other items. The article was from 
     Inspire, an English-language magazine produced by Al Qaeda in 
     the Arabian Peninsula.
       (20) Ulugbek Kodirov--Plot to Assassinate President Obama--
     July 2011.
       Ulugbek Kodirov, an Uzbek living in Alabama, was arrested 
     when he sought assistance to kill President Obama either by 
     shooting him or using explosives. The affidavit said that the 
     source whom Kodirov contacted for help told authorities that 
     Kodirov supported Islamic extremists and regularly viewed 
     jihadist websites.
       (21) Emerson Begolly--Plot to Encourage Jihadist Acts in 
     the United States--July 2011.
       On July 14, 2011, Emerson Begolly, a U.S. citizen from New 
     Bethlehem, PA, was indicted for attempting to encourage 
     jihadists to commit acts of terrorism within the United 
     States and distributing information related to explosives 
     online. In August 2011, he pleaded guilty to ``soliciting 
     others to engage in acts of terrorism within the United 
     States and to using a firearm during and in relation to an 
     assault on FBI agents.'' According to DOJ, Begolly posted 
     ``links to a 101-page document that contain[ed] information 
     on how to set up a laboratory, conduct basic chemistry, and 
     manufacture explosives.''
       (22) Abu Khalid Abdul-Latif and (23) Walli Mujahidh--Plot 
     to Attack Seattle Military Processing Center--June 2011
       On June 22, 2011, Abu Khalid Abdul-Latif and Walli 
     Mujahidh, were arrested on terrorism and firearms charges for 
     plotting to attack a Seattle military processing center. An 
     FBI sting operation apprehended the two as they took 
     possession of machine guns they had purchased for the plot. 
     The firearms had been rendered inert as part of the sting 
     operation. Assistant Attorney General for National Security 
     Todd Hinnen described the plot as, ``driven by a violent, 
     extreme ideology.'' While the two reportedly had not worked 
     out all of the details of their plot, they allegedly were 
     frustrated by ``American war policies'' and hoped for an 
     attack that would garner wide attention.
       (24) Yonathan Melaku--Plot to Shoot Targets in Washington, 
     DC, Area--June 2011
       On June 23, 2011, DOJ announced that Yonathan Melaku, an 
     Ethiopian native living in Alexandria, VA, was charged with 
     destruction of property and firearm violations. These charges 
     stemmed from five shootings at military installations in 
     Northern Virginia between October and November 2010. No one 
     was harmed in the shootings. It is unclear to what extent 
     Melaku, a Marine Corps reservist, was driven by jihadist 
     motivations; however, investigators linked Melaku to a spiral 
     notebook with numerous Arabic statements referencing the 
     Taliban, Al Qaeda, Osama bin Laden, ``The Path to Jihad,'' as 
     well as a list of several other individuals associated with 
     foreign terrorist organizations. Law enforcement officials 
     also found a video when they searched Melaku's bedroom. It 
     reportedly depicted ``Melaku in an automobile driving near 
     what appears to be the U.S. Marine Corps Heritage Museum and 
     repeatedly firing a handgun out the passenger-side window.'' 
     In the video, he allegedly states, ``that's my target. That's 
     the military building. It's going to be attacked,'' and then 
     he shouts, ``Allah Akbar.''
       (25) Waad Ramadan Alwan and (26) Mohanad Shareef Hammadi--
     Material Support to Al Qaeda in Iraq--May 2011
       Alwan and Hammadi were arrested on May 25, 2011 in Kentucky 
     on charges to commit conspiracy to kill U.S. nationals abroad 
     and provide material support, including weapons, to Al Qaeda 
     in Iraq among other charges.
       (27) Ahmed Ferhani and (28) Mohamed Mamdouh--Plot to Attack 
     New York City Targets--May 2011
       On May 12, 2011, Ahmed Ferhani (an Algerian native living 
     in Queens, NY) and Mohamed Mamdouh (a naturalized U.S. 
     citizen from Morocco) were arrested for plotting to blow up a 
     synagogue as well as churches in New York City. However, the 
     duo had not chosen a specific target. New York City officials 
     alleged that Ferhani was driven by a hatred of Jews and a 
     belief that Muslims are mistreated the world over. He and 
     Mamdouh allegedly had purchased firearms and a hand grenade 
     from an undercover detective posing as a gun dealer.
       (29) Joseph Jeffrey Brice--Testing Explosives and Proving 
     Material Support to Terrorists--May 2011
       Joseph Jeffrey Brice was arrested on charges of 
     manufacturing an unregistered firearm and later an additional 
     charge of providing material support for terrorism. Police 
     began to take an interest in Mr. Brice after he was seriously 
     injured in April 2010 while testing a homemade bomb. 
     Investigators discovered videos Brice posted that depicted 
     suicide bombings in Pakistan and links to a terrorism 
     magazine with instructions on how to make explosives. He also 
     posted bomb making videos to YouTube under the name 
     ``StrengthofAllah.'' Mr. Brice also plotted with an 
     unidentified man to rob a Zions First National bank in Idaho 
     although the plot was never acted upon. Authorities believe 
     Brice was not a Muslim; rather, he assumed a Muslim identity 
     online in order to sell his bomb-making expertise.
       (30) Hafiz Muhammed Sher Ali Khan, (31) Irfan Khan, and 
     (32) Izhar Khan,--Material Support to the Pakistani Taliban--
     May 2011
       Six individuals located in South Florida and Pakistan were 
     indicted in the Southern District of Florida on charges of 
     providing financing and other material support to the 
     Pakistani Taliban, a designated foreign terrorist 
     organization. Three of them were located abroad. Hafiz 
     Muhammed Sher Ali Khan, Irfan Khan, and Izhar Khan were 
     arrested in the U.S.
       (33) Kevin William Harpham--Attempt to Use an Explosive 
     Device--March 2011
       On March 9, 2011, Kevin Harpham was arrested for placing an 
     explosive device alongside a planned Martin Luther King Jr. 
     Day Unity March. Harpham admitted that he was a white 
     supremacist and white separatist.
       (34) Khalid Ali-M Aldawsari--Plot to Bomb U.S. Targets--
     February 2011
       On February 23, 2011, FBI agents arrested Khalid Ali-M 
     Aldawsari, a citizen of Saudi Arabia and resident of Lubbock, 
     TX. He was charged with attempted use of a weapon of mass 
     destruction. He also allegedly plotted to purchase material 
     to make an improvised explosive device and had researched 
     potential U.S. targets. A chemical supplier provided 
     information to the FBI about a suspicious attempted purchase 
     by Aldawsari. Prosecutors have stated that among the targets 
     Aldawsari researched was the home address for former 
     President George W. Bush. He also researched the names and 
     home addresses of three American soldiers who had previously 
     served at Abu Ghraib prison in Iraq.
       (35) Roger Stockham--Plot to Attack Shia Mosque in 
     Michigan--January 2011
       Roger Stockham was arrested on January 24, 2011 outside the 
     Islamic Center of America in Dearborn, Michigan. Mr. 
     Stockham, a Vietnam veteran from Southern California, was 
     caught with explosives in his vehicle outside the Michigan 
     mosque. Authorities found a large but undisclosed quantity of 
     class-C fireworks including M-80s, which are banned in 
     Michigan, in his car. Mr. Stockham had a history of mental 
     health issues and criminal acts ranging from kidnappings to 
     attempted bombings.
       (36) Antonio Martinez--Plot to Bomb Armed Forces Recruiting 
     Center--December 2010
       Antonio Martinez (aka Muhammad Hussain), a U.S. citizen 
     from Baltimore was charged with attempting to detonate a bomb 
     outside of a U.S. Armed Forces recruiting center in 
     Catonsville, Maryland on December 8, 2010. Unbeknownst to 
     him, Mr. Martinez was working with undercover FBI agents the 
     whole time as they had been monitoring him since October 1, 
     2010 when a confidential source tipped off authorities to the 
     potential danger. Martinez had attempted to recruit up to 
     five other people to his plot, but they all declined to help 
       (37) Mohamed Osman Mohamud--Plot to Bomb Christmas Tree 
     Lighting Ceremony--November 2010
       Mohamed Osman Mohamud a US Citizen from Somalia was charged 
     with attempting to detonate a vehicle bomb at a Christmas

[[Page S7022]]

     tree lighting ceremony in Portland, OR on November 26, 2010. 
     The arrest was the culmination of a months-long investigation 
     and the explosives he was trying to detonate were inert. 
     Mohamud was in touch with contacts in Pakistan and he was 
     trying to travel overseas to engage in a violent jihad, 
     according to the FBI. Mohamud told undercover agents that he 
     had been trying to commit a violent jihad for 4 years, since 
     he was 15.
       (38) Mohamud Abdi Yusuf and (39) Abdi Mahdi Hussein--
     Material Support to Al-Shabaab and Conspiracy to Structure 
     Financial Transactions--November 2010
       On November 1, 2010, Mohamud Abdi Yusuf was arrested on 
     charges of providing material support to al Shabaab and one 
     charge of conspiracy to structure financial transactions. 
     Abdi Mahdi Hussein was arrested one day later on a charge of 
     conspiracy to structure financial transactions. The 
     indictment alleged that Yusuf and Hussein sent funds to al 
     Shabaab supporters in Somalia from licensed money remitting 
     businesses operating in the United States, in part by using 
     fictitious names and telephone numbers to conceal the nature 
     of their activities.
       (40) Farooque Ahmed--Plot to Bomb Washington, DC, Subway 
     Stations--October 2010
       Farooque Ahmed was arrested on October 27, 2010, and 
     charged with conspiring with others he believed to be Al 
     Qaeda operatives to bomb subway stations in Washington, DC. 
     His co-conspirators turned out to be undercover law 
     enforcement officers.
       (41) Abdel Hameed Shehadeh--Travel Abroad to Wage Jihad--
     October 2010
       Abdel Hameed Shehadeh was arrested on October 22, 2010, in 
     Honolulu, HI. Among the accusations against him were that he 
     tried to join the U.S. military so he could be deployed to 
     Iraq but would desert and fight with anti-American insurgency 
       (42) Sami Samir Hassoun--Plot to Detonate an Explosive 
     Device--September 2010
       Sami Samir Hassoun was charged with one count each of (1) 
     attempted use of a weapon of mass destruction and (2) 
     attempted use of an explosive device after placing a backpack 
     which he thought contained an explosive device into a 
     curbside trash receptacle near a crowded nightclub.
       (43) Amina Ali and (44) Hawo Hassan--Material Support to 
     Terrorist Group al Shabaab--August 2010
       On August 15, 2010, 2 Americans and 12 others were charged 
     with terrorism-related crimes linked to the Somali-based 
     organization known as al Shabaab. There were only two arrests 
     of Amina Ali and Hawo Hassan women charged with raising money 
     to support al Shabaab through door-to-door solicitations and 
     teleconferences in Somali communities in Minnesota. 
     Indictments were also unsealed in Minnesota, Alabama, and 
     California charging the other 12 individuals who were 
     believed to be fugitives in Somalia.
       (45) Shaker Masri--Attempted Travel to Somalia or 
     Afghanistan to Fight--August 2010
       Shaker Masri was arrested by the FBI on August 3, 2010, 
     just before he was allegedly planning to travel to Somalia or 
     Afghanistan to join either al-Shabaab or Al Qaeda. The FBI 
     used a cooperating source who met Masri in November 2008 and 
     subsequently consensually recorded conversations with him for 
     the investigation. According to court documents, Masri 
     encouraged the cooperating source to ``review speeches'' by 
     Anwar al-Awlaki.
       (46) Paul Gene Rockwood and (47) Nadia Rockwood--Charged 
     with Perjury in a Terrorism Investigation--July 2010
       Both Paul Rockwood and his wife pleaded guilty to one count 
     of willfully making false statements to the FBI involving 
     terrorism. According to the plea agreements and other 
     documents filed with the court, Paul Rockwood converted to 
     Islam, and later became a strict adherent to the violent 
     jihad-promoting ideology of cleric Anwar Al-Awlaki. According 
     to the filed court documents, after he moved to King Salmon, 
     Alaska in 2006, Paul Rockwood continued his adherence to Al-
     Awlaki's ideology and by early 2010, he formalized a target 
     list to include 15 specific locations all outside the state 
     of Alaska. In April 2010, Paul Rockwood gave his written 
     target list to his wife, Nadia, who, knowing of its purpose, 
     carried the list with her on a trip to Anchorage. The FBI's 
     Joint Terrorism Task Force (JTTF) subsequently obtained the 
     target list. On May 19, 2010, JTTF agents questioned Paul 
     Rockwood and provided him a copy of the target list. In 
     response to agents' questions, Rockwood made false 
     statements, denying he had created such a list, denying the 
     purpose of the list and denying ever having such a list. JTTF 
     agents also questioned Nadia Rockwood on May 19, 2010, about 
     transporting the target list authored by her husband to 
     another person. In response, Nadia Rockwood also made false 
     statements to FBI agents.
       (48) Zachary Adam Chesser and (49) Proscovia Kampire 
     Nzabanita--Conspiracy to Murder ``South Park'' Creators--July 
       On July 21, 2010, Zachary Adam Chesser, of Fairfax County, 
     Va., was arrested on charges that he provided material 
     support to al-Shabaab, a designated foreign terrorist 
     organization. According to court documents, Chesser 
     maintained several online profiles dedicated to extremist 
     jihad propaganda. Chesser eventually admitted to encouraging 
     violent jihadists to attack the writers of South Park, 
     including highlighting their residence and urging online 
     readers to ``pay them a visit.'' Chesser's wife, Proscovia 
     Kampire Nzabanita, eventually pleaded guilty to making a 
     false statement to an FBI agent during the course of the 
     FBI's investigation of her husband.
       (50) Mohamed Alessa and (51) Carlos Almonte--Attempting 
     Material Support to Terrorism--June 2010
       On June 5, 2010, two New Jersey residents, Mohamed Alessa 
     and Carlos Almonte, were arrested at JFK in New York prior to 
     boarding separate flights to Egypt. Authorities alleged the 
     two had hoped to eventually link up with al-Shabaab in 
     Somalia. The following day, they were charged with conspiracy 
     to kill Americans abroad. They are alleged to have vowed to 
     ``slice up'' troops in ``a thousand pieces,'' according to 
     the criminal complaint which cites conversations secretly 
     recorded by a NYPD undercover officer.
       (52) Tarek Mehanna--Providing Material Support to Al 
     Qaeda--June 2010
       Tarek Mehanna (of Sudbury, Massachusetts) and Ahmad 
     Aboursamra (a fugitive in Syria) were charged with conspiring 
     to aid Al Qaeda, as well as attempting to commit murder in a 
     foreign country, conspiracy to commit provide false 
     information to law enforcement, as well as a number of other 
     counts of false statements to law enforcement. Only Mehanna 
     was arrested.
       (53) Barry Walter Bujol, Jr.--Attempting to Provide 
     Material Support to Al Qaeda--June 2010
       Barry Walter Bujol, Jr. was charged with attempting to 
     provide material support to AQAP and aggravated identity 
       (54) Faisal Shahzad--Attempted Car Bombing in Times 
     Square--May 2010
       Fasial Shahzad was arrested on May 3, 2010 and eventually 
     pleaded guilty to 10 crimes stemming from attempting to 
     detonate a car bomb in Times Square on May 1, 2010. Shahzad 
     was apprehended after being identified at JFK Airport after 
     U.S. Customs agents recognized him from video taken at Times 
     Square. Two other individuals were indicted in connection 
     with this terrorist plot:
       (55) Mohammad Younis was arrested in September 2010 and 
     accused of operating an unlicensed money transmitting 
     business which provided funds to Faisal Shahzad. There are no 
     allegations, however, that Younis was aware of the intended 
     use of the money. In the indictment, he was charged with 
     operating an unlicensed money transfer business between the 
     United States and Pakistan and conspiracy to operate an 
     unlicensed money transfer business. In August 2011, he 
     pleaded guilty to the former charge.
       (56) Aftab Ali was charged in a criminal complaint in 
     November 2010 with immigration fraud and making false 
     statements. The complaint alleges that Ali provided $4,900 to 
     Shahzad in February 2010 as part of a hawala transaction. The 
     complaint does not allege that Ali was aware of the intended 
     use of the money by Shahzad, but in April 2011, Ali pleaded 
     guilty to charges of unlicensed money transmitting and 
     immigration document fraud. He was sentenced to time served 
     and ordered to be deported.
       (57) Khalid Ouazzani--Providing Material Support to Al 
     Qaeda--May 2010
       Ouazzani swore an oath of allegiance to Al Qaeda in June 
     2008. Ouazzani admitted that, from August 2007 to February 
     2010, he participated in a conspiracy to provide material 
     support or resources to Al Qaeda. Ouazzani admitted that he 
     personally provided more than $23,000 to Al Qaeda and 
     performed other tasks at the request of and for the benefit 
     of Al Qaeda. Ouazzani also had conversations with others 
     about various ways to support Al Qaeda, including plans for 
     them to fight in Afghanistan, Iraq, or Somalia.
       (58) Wesam el-Hanafi and (59) Sabirhan Hasanoff--Providing 
     Material Support to Al Qaeda--April 2010
       Wesam el-Hanafi and Sabirhan Hasanoff were indicted for 
     conspiring to provide material support, including computer 
     advice and assistance, to Al Qaeda.
       (60) Colleen R. LaRose, (61) Jamie Paulin Ramirez, and (62) 
     Mohammad Hassan Khalid--Material Support to Terrorists--March 
       On March 9, 2010 Colleen LaRose was charged with conspiracy 
     to provide material support to terrorists, conspiracy to kill 
     in a foreign country, making false statements to a government 
     official, and attempted identity theft. The indictment 
     charged that LaRose, an American citizen who went by the 
     alias ``Jihad Jane'', was part of a group who recruited men 
     on the Internet to wage violent jihad in South Asia and 
     Europe, and recruited women on the Internet who had passports 
     and the ability to travel to and around Europe in support of 
     violent jihad. Additionally, LaRose was accused of directly 
     plotting to kill a citizen of Sweden. LaRose, aka ``Jihad 
     Jane,'' pleaded guilty in February 2011 in the Eastern 
     District of Pennsylvania and Ramirez pleaded guilty in the 
     Eastern District of Pennsylvania in March 2011.
       On April 2, 2010, Jamie Paulin Ramirez, a U.S. citizen and 
     former resident of Colorado, was also charged with conspiracy 
     to provide material support to terrorists, and linked to the 
     same group as LaRose. The superseding indictment charged that 
     LaRose and Ramirez traveled to and around Europe to 
     participate in and in support of violent jihad.
       Finally, on October 20, 2011, Mohammad Hassan Khalid was 
     also charged with providing material support to terrorists 
     linking back to the same case as LaRose and Ramirez. The 
     indictment alleged that, from about 2008 through July 2011, 
     Khalid conspired with LaRose, Ramirez, and others to provide 
     material support and resources, including

[[Page S7023]]

     logistical support, recruitment services, financial support, 
     identification documents and personnel, to a conspiracy to 
     kill overseas.
       (63 through 71) Nine Members of Militia Group ``The 
     Hutaree'' Charged with Attempted Use of Weapons of Mass 
     Destruction--March 2010
       Six Michigan residents, two Ohio residents, and a resident 
     of Indiana were charged with attempted use of weapons of mass 
     destruction among other charges. The indictment alleged that 
     nine individuals who were part of the Lenawee County Michigan 
     militia group called the Hutaree, conspired to oppose by 
     force the authority of the U.S. government. The indictment 
     further alleged that the Hutaree planned to kill an 
     unidentified member of local law enforcement and then attack 
     the law enforcement officers who gathered for the funeral. 
     According to the plan, the Hutaree would attack law 
     enforcement vehicles during the funeral procession with 
     improvised explosive devices, which, according to the 
     indictment, constitute weapons of mass destruction.
       (72) Raja Ladrasib Khan--Provided Material Support to Al 
     Qaeda--March 2010
       Khan was arrested and charged with sending money orders to 
     Ilyas Kashimiri, a Pakistani Al Qaeda Leader on multiple 
     occasions knowing that the money was going to a terrorist 
       (73) Hosam Maher Husein Smadi--Attempting to use a Weapon 
     of Mass Destruction--March 2010
       On September 24, 2009, Hosam Maher Husein Smadi was 
     arrested and charged in a federal criminal complaint with 
     attempting to use a weapon of mass destruction after he 
     placed an inert/inactive car bomb near Fountain Place, a 60-
     story glass office tower in downtown Dallas. Smadi repeatedly 
     espoused his desire to commit violent jihad and had been the 
     focus of an undercover FBI investigation.
       (74) Omer Abdi Mohamed--Conspiring to Provide Material 
     Support to Murder, Kidnap, and Maim Abroad--November 2009
       The indictment alleged that Omer Abdi Mohamed conspired to 
     provide material support to kill, kidnap, maim, or injure 
     persons in a foreign country. Among the activities alleged 
     against Mohamed were that he recruited young men to send to 
     Somalia to fight for al-Shabaab. In July 2011, Mohamed 
     pleaded guilty to the charges filed against him.
       (75) Abdow Munye Abdow--False Statements in a Terrorism 
     Investigation--October 2009
       On October 13, 2009, a federal grand jury returned a two-
     count indictment charging Abdow Munye Abdow with making false 
     statements to the FBI after being stopped during a road trip 
     from Minneapolis to Las Vegas with young men, allegedly 
     facilitating their travel to Somalia to fight for al-Shabaab.
       (76) David Coleman Headley and (77) Tahawwur Hussain Rana--
     Terrorism Conspiracy--October 2009
       On October 29, 2009, David Coleman Headley and Tahawwur 
     Hussain Rana were arrested for their alleged roles in 
     conspiracies to provide material support and/or to commit 
     terrorist acts against overseas targets, including facilities 
     and employees of a Danish newspaper that published cartoons 
     of the Prophet Mohammed in 2005. Eventually Headley pleaded 
     guilty to a dozen charges of terrorism stemming from the 
     November 2008 terrorist attack in Mumbai, India. Headley also 
     admitted to attending training camps in Pakistan to prepare 
     for terrorist attacks and to traveling to Mumbai to conduct 
     surveillance in 2005.
       (78) Najibullah Zazi, (79) Adis Medunjanin, and (80) Zarein 
     Ahmedzay--Conspiracy to Use Weapons of Mass Destruction--
     September 2009
       On Sept. 8, 2009, Zazi drove from Denver to New York, 
     carrying explosives and other materials necessary to build 
     bombs and carry out attacks in New York City, including a 
     plan to bomb the New York subway system. However, shortly 
     after arriving in New York, Zazi learned that law enforcement 
     was investigating his activities, so he traveled back to 
     Denver, where he was arrested on Sept. 19, 2009. Medunjanin 
     and Ahmedzay were later arrested in connection with Zazi's 
     bombing plot. All three men had traveled to Pakistan for 
     terrorist training and along with others, planned the New 
     York terrorist attacks. Three other individuals were indicted 
     in connection with this terrorist plot:
       (81) Mohammed Wali Zazi, Najibullah Zazi's father was 
     arrested in the fall of 2009 for lying to investigators. On 
     February 1, 2010, he was indicted for conspiring to dispose 
     of his son's bomb-making materials and chemicals. In July 
     2011, the elder Zazi was found guilty in federal court on one 
     count of conspiracy to obstruct justice and one count of 
     obstruction of justice.
       (82) Ahmad Wais Afzali, a Queens Imam, was arrested for 
     tipping off Zazi to the FBI investigation. Afzali had been a 
     source of information for federal and New York City 
     investigators in the past. On March 4, 2010, Afzali pleaded 
     guilty to lying to federal officials. He stated in court that 
     he lied about a conversation he had with Zazi tipping him off 
     to the FBI's investigation.
       (83) Naqib Jaji, Zazi's uncle, eventually pleaded guilty to 
     obstructing justice.
       (84) Michael Finton--Plot to Bomb the Springfield, 
     Illinois, Federal Building--September 2009
       On September 23, 2009, Michael C. Finton, who had converted 
     to Islam was arrested after he drove a van he thought was 
     loaded with explosives--but was actually full of inert 
     materials provided to him by the FBI--to the Paul Findley 
     Federal Building in Springfield, IL. Prosecutors say he 
     parked and locked the vehicle, then moved a few blocks away 
     before twice making cell phone calls he believed would 
     trigger a blast that would kill or injure people inside the 
     building. In May 2011, he pleaded guilty to attempting to 
     bomb the building and was sentenced to 28 years in prison.
       (85) Daniel Patrick Boyd, (86) Hysen Sherifi, (87) Anes 
     Subasic, (88) Zakariya Boyd, (89) Dylan Boyd, (90) Mohammad 
     Omar Aly Hassan, and (91) Ziyad Yaghi--Terrorism Violations--
     July 2009
       On July 27, 2009, seven individuals in North Carolina were 
     charged with conspiring to provide material support to 
     terrorists and conspiring to murder, kidnap, maim, and injure 
     persons abroad. The indictment alleged that Daniel Boyd and 
     the other defendants conspired to provide material support 
     and resources to terrorists, including currency, training, 
     transportation, and personnel. The defendants also conspired 
     to murder, kidnap, maim, and injure persons abroad during 
     this period. The object of the conspiracy, according to the 
     indictment, was to advance violent jihad.
       (92) James Cromitie, (93) David Williams, (94) Onta 
     Williams, and (95) Laguerre Payen--Plot to Blow up Synagogues 
     and Shoot down U.S. Military Planes--May 2009
       These four men were arrested for plotting to bomb 
     synagogues in the Bronx, New York. Additionally, they planned 
     to use Stinger, surface to air missiles, to shoot down 
     military planes at New York Air National Guard Base. The men 
     were contacted by FBI informants and given inert weapons, 
     which they proceeded to try and use, which is when they were 
       (96) Salah Osman Ahmed--Providing Material Support to al-
     Shabaab--July 2009
       On February 19, 2009, Salah Osman Ahmed pleaded guilty to 
     providing material support to al-Shabaab.
       (97) Abdifatah Yusuf Isse--Providing Material Support to 
     al-Shabaab--April 2009
       On February 19, 2009, Abdifatah Yusuf Isse guilty to 
     providing material support to al-Shabaab.
       (98) Kamal Said Hassan--Providing Material Support to al-
     Shabaab--February 2009
       On February 19, 2009, Kamal Said Hassan pleaded guilty to 
     providing material support to al-Shabaab and making false 
     statements to the FBI.

  Mrs. FEINSTEIN. It is also important to understand that suspected 
terrorists who may be in the United States illegally can be detained 
within the criminal justice system using at least the following four 
options: One, they can be charged with a Federal or State crime and 
held; two, they can be held for violating immigration laws; three, they 
can be held as material witnesses as part of Federal grand jury 
proceedings; and, four, they can be held under section 412 of the 
PATRIOT Act for up to 6 months.
  I wish to be very clear about what this amendment is and what it is 
not about. It is not about whether citizens such as Hamdi and Padilla 
or others who would do us harm should be captured, interrogated, 
incarcerated, and severely punished. They should be. But what about an 
innocent American? What about someone in the wrong place at the wrong 
time with the wrong skin color?
  The beauty of our Constitution is that it gives everyone in the 
United States basic due process rights to a trial by a jury of their 
peers. That is what makes this Nation great. As Justice Sandra Day 
O'Connor wrote for the plurality in Hamdi v. Rumsfeld:

       As critical as the Government's interests may be in 
     detaining those who actually pose an immediate threat to the 
     national security of the United States during ongoing 
     international conflict, history and common sense teach us 
     that an unchecked system of detention carries the potential 
     to become a means for oppression and abuse of others who do 
     not present that sort of threat.

  Just think of it. If someone is of the wrong race and they are in a 
place where there is a terrorist attack, they could be picked up, they 
could be held without charge or trial for month after month, year after 
year. That is wrong. Experiences over the last decade prove the U.S. is 
safer now than before the 9/11 attacks. Terrorists are behind bars, 
dangerous plots have been thwarted. The system is working and hopefully 
improving each day.
  So I think now is the time to clarify U.S. law to state unequivocally 
that the government cannot without trial or charge indefinitely detain 
Americans and green card holders captured inside this country.
  The Federal Government experimented with indefinite detention of U.S. 
citizens during World War II, a mistake we now recognize as a betrayal 
of our core values. Let's not repeat it. I urge my colleagues to 
support this amendment.

[[Page S7024]]

  I yield the floor for Senator Paul.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Kentucky.
  Mr. PAUL. Mr. President, I rise to support Senator Feinstein's 
amendment. I compliment her on her work. I also echo the importance of 
the right to trial by jury. In fact, I am appalled that anyone would 
think we could arrest anyone in our country without charging them and 
giving them a right to a trial. It seems so fundamentally un-American.
  I agree with her also that I think the Supreme Court would apply this 
to anyone. Our amendment will say citizens and permanent residents. But 
I think the Supreme Court, if challenged, will uphold the right to 
trial by jury of anyone within the United States.
  Today, we will either affirm the right to trial by jury or restrict 
it. Today, we will vote to affirm the sixth amendment to the 
Constitution or we will spurn it. Today, we will vote to affirm 800 
years of history, beginning with the Magna Carta, or we will relinquish 
or, at the very least, diminish a right that Jefferson referred to as 
``the only anchor yet imagined by man, which a government can be held 
to the principles of its Constitution.'' The right to trial by jury was 
a check on oppressive government.
  Opponents of the right to trial by jury will come and they will argue 
that the American homeland is now a battlefield and that we must 
circumscribe our right to trial by jury to be safe from terrorists. But 
if we give up our rights, have not the terrorist won? If we let fear 
relinquish our rights--if we relinquish our rights because of fear, 
what is it exactly then we are fighting for?
  We are asked to relinquish our rights because the battlefield is 
limitless. It is, though, not a temporary suspension they are asking 
for, and they request this because they also say the battle is also 
without limit. This is not a war that is going to end, nor is it a 
right they will suspend temporarily. They are asking people to 
relinquish their right to trial by jury for the rest of this limitless 
  Those Senators who would propose limiting the right to trial by jury, 
they deflect and demur that everyone will still have a habeas hearing. 
A habeas hearing is important. They must present the body and a judge 
might say: Why are you holding this person? But it is not the end of 
due process; it is the beginning of due process.
  A habeas hearing is not due process. It is the beginning. We must 
still have a trial by jury or we do not have the due process our 
Founding Fathers fought for. Those Senators who would abridge this and 
say a habeas hearing is enough should remember Blackstone's admonition, 
``Every new tribunal, erected for the decision of facts without the 
intervention of a jury . . . is a step towards establishing 
aristocracy, the most oppressive of absolute governments.''
  We are told we cannot do this. We have to put these people outside 
the constitutional court, that somehow we need something beyond the 
Constitution, that the Constitution is not enough to convict 
terrorists. Yet hundreds of terrorists have been convicted. In fact, 
two terrorists in my little small town, Bowling Green, KY, were 
apprehended and were tried and were convicted to life for terrorism. We 
can do it.
  We are told that only terrorists associated with al-Qaida will this 
be applied to. We will only take away the right to trial by jury if 
they are part of al-Qaida. But part of the security apparatus also 
tells us to know your neighbor. Know your neighbor so you can report 
your neighbor.

  In fact, we are told by the government some of the characteristics 
that might make you a terrorist. We are told by the Department of 
Justice that if you have stains on your clothing, that if you are 
missing fingers, if you have changed the color of your hair recently, 
that if you prefer to pay in cash, that if you own weatherized 
ammunition, if you own multiple guns, you might be a terrorist; that 
your neighbor should report you.
  Do we want to relinquish our right to trial by jury if the 
characteristics of terrorism are wanting to pay by cash? In Missouri, 
they had fusion centers. They are supposed to accumulate information 
about terrorists and sort of assimilate Federal and local and have 
better communications.
  Sounds good. I am all for better communications. Before 9/11 we did 
mess up. We did not communicate well. But from this fusion center comes 
a document that says: Beware of people who have bumper stickers 
supporting third-party candidates, beware of people who believe in 
stricter immigration laws, beware of people who support the right to 
life; they might be terrorists. This is an official document. Do we 
want to give up the right to trial by jury when we are being told 
someone who keeps food in their basement might be a terrorist?
  Am I the only one who fears the relinquishing of a right we have had 
for 800 years? Am I the only one who fears that a terrorist might be 
someone whom we might describe as someone who is a constitutionalist? 
This is an ancient right to trial by jury we have had since virtually 
the beginning of our historic times. The Greeks and the Romans had a 
form of right to trial by jury.
  In 725 A.D., Morgan of Glamorgan, the Prince of Wales, said, ``For as 
Christ and his Twelve Apostles were finally to judge the world, so 
human tribunals should be composed of twelve wise men.'' We have been 
doing this for hundreds upon hundreds of years. We saw it as a way to 
check the oppression of the King but also to check the potential 
oppression of government.
  England and America have for centuries prized this right to trial by 
jury. It seems a shame to scrap it now. Our Founders believed so firmly 
in the right to trial by jury that they enshrined it in the body of the 
Constitution, again in this sixth amendment and again every State of 
the Union has within the body of its constitution the right to trial by 
  It seems a shame to scrap it now. Churchill proudly remembers our 
joint devotion to trial by jury. He writes, ``We must never cease to 
proclaim in fearless tones the great principles of freedom and the 
rights of man which are the joint inheritance of the English-speaking 
world and which through the Magna Carta, the Bill of Rights, habeas 
corpus, trial by jury and the English common law find their most famous 
expression in the Declaration of Independence.''
  Senator Lafollette, a famous Senator from Wisconsin, put it well. He 

       Let no man think that we can deny civil liberty to others 
     and retain it for ourselves. When zealot agents of the 
     government arrest suspected radicals without warrant, hold 
     them without prompt trial, deny them access to counsel and 
     admission of bail . . . we have shorn the Bill of Rights of 
     its sanctity . . .

  Today we have a chance to reaffirm our belief in the right to trial 
by jury. We have a chance to replace fear with confidence, confidence 
that no terrorist and no country will ever conquer us if we remain 
steadfast, steadfast to the principles of our founding documents.
  We have nothing to fear except our own unwillingness to defend what 
is naturally ours, our God-given rights. We have nothing to fear that 
should cause us to relinquish our rights as free men and women. I urge 
my colleagues to reject fear, to reject the siren call for an ever more 
powerful government.

  Justice White put it well when he said:

       A right to jury trial is granted criminal defendants in 
     order to prevent the oppression by the government.

  It is not just about a fair trial, it is about checking your 
government. This vote today is about more than just combating terrorism 
or a fair trial, it is about relinquishing the right to the checks and 
balances, to the checks that cause and help us to check the relentless 
growth of government. It is about whether a free people are willing to 
remain steadfast in our defense of an 800-year-old right that finds 
justice for the accused and provides restraint and limits on despotism.
  I hope my colleagues will today vote against limitations on the trial 
by jury, recognize its sanctity, and recognize the importance of 
something that brings Members from the right side of the aisle together 
with Members of the left side of the aisle who believe strongly in the 
defense of the Bill of Rights.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.

[[Page S7025]]

  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 

  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.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, somewhere on this desk I have a unanimous 
consent request.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that Senator 
Baucus be added as a cosponsor to my amendment No. 3018.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I yield the floor, and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


  Ms. COLLINS. Mr. President, I ask unanimous consent that Senator 
DeMint be added as a cosponsor of the amendment entitled ``Feinstein-
Collins amendment No. 3018.''
  The PRESIDING OFFICER. Without objection, it is so ordered.
  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 
  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 
  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 

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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.