[Congressional Record Volume 158, Number 151 (Thursday, November 29, 2012)]
[Pages S7148-S7206]



                           Amendment No. 3018

  Mrs. FEINSTEIN. I ask unanimous consent to call up amendment No. 
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein], for herself, 
     Mr. Lee, Mr. Coons, Ms. Collins, Mr. Paul, Mr. Lautenberg, 
     Mrs. Gillibrand, and Mr. Kirk, proposes an amendment numbered 

  Mrs. FEINSTEIN. I ask unanimous consent that the reading of the 
amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  The amendment is as follows:

  (Purpose: To clarify that 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)

       At the end of subtitle D of title X, add the following:


       Section 4001 of title 18, United States Code, is amended--
       (1) by redesignating subsection (b) as subsection (c); and
       (2) by inserting after subsection (a) the following:
       ``(b)(1) 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.
       ``(2) Paragraph (1) applies to an authorization to use 
     military force, a declaration of war, or any similar 
     authority enacted before, on, or after the date of the 
     enactment of the National Defense Authorization Act For 
     Fiscal Year 2013.
       ``(3) Paragraph (1) shall not be construed to authorize the 
     detention of a citizen of the United States, a lawful 
     permanent resident of the United States, or any other person 
     who is apprehended in the United States.''.

  Mrs. FEINSTEIN. I note that Senator Lee is on the floor, and I know 
he wants to speak as he is a cosponsor of this amendment. So I will 
yield to him, and then when he finishes I will speak.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  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 
  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 
  I believe it is clear that the Founders of our Constitution were 
acutely aware of this critical tradeoff--the tradeoff

[[Page S7182]]

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.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, the amendment before us is cosponsored 
by the distinguished Senator who just spoke, Senator Lee, as well as 
Senators Coons, Collins, Paul, Lautenberg, Gillibrand, Kirk, Tester, 
Johnson, Sanders, Whitehouse, Heller, Baucus, DeMint, Webb, Klobuchar, 
Bingaman, Rockefeller, Begich, and Boxer. An amendment similar to this 
received 45 votes in the last session.
  I wish to spend a moment on the genesis of this amendment because, 
for me, it goes back to April 1942, the day a Western Defense Command 
and Fourth Army Wartime Civil Control order went out in San Francisco 
with instructions to all persons of Japanese ancestry, that: All 
Japanese persons, both alien and nonalien, will be evacuated from the 
above designated areas by 12 o'clock noon on Tuesday, April 7, 1942. No 
Japanese person will be permitted to enter or leave the above described 
area after 8 a.m. Thursday.
  That was in the city of San Francisco.
  What was created was an internment camp near the city which became a 
staging area for the placement of Japanese Americans in detention camps 
without charge or trial for the remainder of World War II.
  This was Tanforan Racetrack, directly south of San Francisco. One 
Sunday afternoon--I was a small child in 1942--my father took me down 
to show it to me. This is what I saw. We see stalls made into bunk 
houses. We see the center of the field made into barracks. We see the 
little places where individuals were kept. We see Japanese-American 
citizens who did nothing wrong who were being interned for years during 
World War II.

  It was shocking. Then it took until 1971 for a bill to be passed and 
then signed by President Nixon reversing the policy. That bill was 
called the Non-Detention Act of 1971, and it repealed a 1950 statute 
that explicitly allowed detention of U.S. citizens. That 1971 bill 
said--and I quote:

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

  Since then and after 9/11, various cases were litigated and went as 
far up as the Supreme Court. One of them in 2004 was Hamdi v. Rumsfeld, 
and it addressed a very narrow issue involving a citizen captured on 
the battlefield of Afghanistan. Then a second case, Padilla v. 
Rumsfeld, in the Second Circuit Court of Appeals involved an American 
citizen captured in the U.S.
  So the question is whether the Non-Detention Act of 1971 prevents 
U.S. citizens captured in the U.S. like Padilla from being detained or 
whether the AUMF passed after 9/11 authorizes such law of war detention 
in the U.S.
  What we are trying to do with this simple amendment is what is called 
a clear statement rule, to say once and for all:

       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.

  I know this is a sensitive subject, but I believe we stand on the 
values of our country, and one of the values of our country is justice 
for all. And we have a Constitution that has 7 articles and 27 
amendments that give us fundamental protections.
  This amendment, which builds on the continuing application of the 
principles behind the Non-Detention Act of 1971, would provide very 
clearly that no military authorization allows the indefinite detention 
of U.S. citizens or green card holders who are apprehended inside the 
United States. Some may ask why just include citizens and green card 
holders. Let me be clear, if I could further and add ``all persons'' 
and get as many votes, I would. I do not think it would, and we have 
looked into how to do this for a year now. So we have limited it to 
what we believed could get the maximum number of votes in this body.
  Here is the point of this amendment: What if something happens and 
you are of the wrong race in the wrong place at the wrong time, and you 
are picked up and held without trial or charge in detention ad 
infinitum? We want to clarify so this cannot happen; so that the law 
does not permit an American citizen or a legal permanent resident to be 
picked up and held without end, without charge or trial.
  I want to say that the FBI and other law enforcement agencies have 
proven time and time again that they are up to the challenge of 
detecting, stopping, arresting, and convicting terrorists found on U.S. 
  I have a document that was prepared by the Intelligence Committee 
staff lists 98 terrorists who have been arrested and are on their way 
to conviction and will do time, many of them life sentences, in Federal 
prisons, and these are just those arrested in the last 3 or 4 years.
  Since January of 2009, there are 98 who have been successfully 
arrested. I think it is important to understand that suspected 
terrorists who may be in the United States illegally can be detained 
within the criminal justice system under four options that exist today. 
They can be charged with a Federal or State crime and held. They can be 
held for violating immigration laws. They can be held as material 
witnesses as part of a Federal grand jury proceedings. They can be held 
under section 412 of the PATRIOT Act for up to 12 months.
  This amendment 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 and 
they are.
  It is about the innocent American, again in the wrong place, at the 
wrong time, who gets picked up, like these innocent Japanese Americans 
shown in this picture who just happened to live in a certain part of 
the United States, in my hometown, San Francisco. But this was what 
happened. People were picked up and held for the duration of the war--
just because of their race.
  Finally, I want to quote Justice Sandra Day O'Connor, who wrote for 
the plurality in the Hamdi decision in 2004:

       As critical as the Government's interest 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.

  So it is my hope we can clarify U.S. law to state unequivocally that 
the government cannot indefinitely detain American citizens or legal 
residents captured inside this country without trial or charge.
  We live with the stain of how we treated some of our own people 
during World War II. It should not be repeated.
  I thank the Acting President pro tempore, and I would like to yield 
to the distinguished Senator Paul, if I may.
  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. PAUL. Mr. President, I rise today in support of the Feinstein-Lee 
amendment to prevent the indefinite detention of American citizens 
without a trial by jury. In the year 1215, the English barons gathered 
on the plain at Runnymede. They gathered to protest against King John. 
They gathered for their rights as free men. And they gathered for the 
right to trial by jury.

[[Page S7183]]

We have had it enshrined in both English law and American law for 800 
years. It seems a shame to scrap it now.
  People say: But these terrorists are horrible people. Yes, they are 
horrible people. But every day and every night in our country horrible 
people are accused of crimes, and they are taken to court. They have an 
attorney on their side. They are given a trial. People we despise, 
people who murder and rape, are given trials by juries. We can try and 
we can prosecute terrorists.
  People say: But they are terrorists. Well, the thing is, you are an 
American citizen and you are accused of terrorism. Who is going to 
determine who is a terrorist and who is not a terrorist? They do not 
walk around with a badge. They do not walk around with a card that 
says: I am from al-Qaida. They will be accused of a crime, and there 
will be facts. Someone must judge the facts. That is what a jury does.
  To give up on this because we are afraid of terrorists is to give in 
to the terrorists. If we give up our rights, if we relinquish our 
rights, haven't the terrorists then won?
  Jefferson said the right to trial by jury was the ``anchor,'' it was 
the anchor by which we protect ``the principles of the Constitution.''
  Senator La Follette, a Senator from Wisconsin, said if we give up 
these rights, if we are unable to protect these rights, that ultimately 
the Bill of Rights loses its value.
  He said:

       Let no man think that we can deny civil liberty to others 
     and retain it for ourselves. When zealot agents of the 
     governments 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. . . .

  I would ask today of my colleagues that we have a chance to replace 
fear with confidence--confidence that no terrorist will ever conquer us 
if we remain steadfast to our principles--the principles of our 
Founders. We have nothing to fear except our own unwillingness to 
protect our rights. If we relinquish our right to trial by jury, we 
will have given up so much. Do not let those who would instill fear let 
you give up the most basic of rights--a right that prevents the 
oppression of government and the evolution or devolution into 
  So I hope my colleagues will today vote to uphold an 800-year-old 
tradition, a tradition that is enshrined in the body of our 
Constitution, a tradition that is enshrined in our Bill of Rights, and 
a tradition that is in every constitution of all 50 States. Are we to 
give that up because we are fearful? We can and have convicted 
terrorists. We are not talking about terrorists from overseas. We are 
not talking about a battlefield somewhere else. We are talking about 
American citizens accused in our country.
  Why should you be wary? The government has descriptions of who might 
be a terrorist. If you have 7 days' of food in your basement, you might 
be a terrorist. If you have weatherized ammunition, you might be a 
terrorist. This is what your government describes as things you should 
report. Know your neighbor to report your neighbor. If you have 
weatherized ammunition, multiple guns, food in your basement, if you 
like to pay by cash--if these are the characteristics for which you 
might be accused of terrorism, would you not, at the very least, still 
want to retain your right as an American citizen to a right to a trial 
by a jury of your peers?
  I ask that we step up today and support an ancient tradition. And I 
worry about a country that would let a tradition like the right to 
trial by jury go so easily.
  Thank you, Mr. President.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I appreciate the opportunity. This is a 
good debate. It is a fascinating discussion. I guess the way I look at 
this issue--and we will talk with Senator Levin in a bit--I have been a 
military lawyer for about 30 years, and the first thing you do in JAG 
school is have a discussion about the difference between the law of war 
and criminal law. Every military lawyer is taught from the very 
beginning of their career that law of war detention is designed to 
neutralize the enemy and to gather intelligence about the enemy.
  There is a reason that when we capture somebody in a war we do not 
give them a trial by jury, and we do not give them a lawyer. We have 
3,000 people in American military custody in Afghanistan who were 
captured on the battlefield, and they are held under the law of war 
because we do not want to let them go back to killing us. And they are 
not given a lawyer because we are not trying to solve a crime; we are 
trying to win a war.
  Here is the question to my good friend from California: I do not want 
anyone to believe that under the law of war construct we have created 
over the last 7 or 8 years that you can be put in jail because you look 
like a Muslim, that you sound like a Muslim, that you have got a name 
Mohammad. What happened to Japanese-American citizens is they were put 
in military custody because we were all afraid and they looked like the 
enemy. That was not a high point in America.
  What are we talking about here? We are talking about detaining people 
under the law of war who are suspected of joining al-Qaida or the 
Taliban and engaging in a belligerent act against the United States. I 
want to make the record clear that some of my colleagues on the 
Republican side have been trying to deny law of war detention to the 
Obama administration, and they have openly said this: If you allow this 
to happen, President Obama is going to put you in jail because of 
political dissent.
  There are people on my side who are afraid of law of war detention 
being in Barack Obama's hands because they think,--they hate him so 
much they think he is going to use a provision to protect us against an 
al-Qaida attack to put them in jail because they disagree with his 
  It gets worse. I want you to know this. There has been a statement in 
our conference that habeas corpus review by an independent judiciary 
where the intelligence community, the military, would have to prove in 
court by a preponderance of the evidence that the person in question 
has, in fact, engaged in hostilities against the United States by 
helping the Taliban or al-Qaida--that is the requirement of the 
government--they have to prove that to the judge, that is not really a 
check on government power because the judge could be an Obama 
  As much as I disagree with President Obama, as much as I think he has 
been a divisive President, in many ways has failed to lead, I want to 
disassociate myself from the concept that you cannot give this 
Commander in Chief the powers that Commanders in Chief have enjoyed in 
other wars because we hate him so much.
  To my friends who get on the Internet and talk radio and stoke this 
paranoia, we are afraid enough for good reason. This is a dangerous 
world. We are about to walk off the fiscal cliff. We have people out 
there trying to undermine our way of life. There is a lot to be afraid 
of: Al-Qaida coming back to our shores, recruiting American citizens to 
help their endeavors. I hate to say it, in every war we have ever been 
in, there have been occasions when Americans joined the enemy.
  In World War II that happened. You had German saboteurs land on Long 
Island, aided and abetted by American citizens sympathetic to the 
Nazis. All of those American citizens in In Re: Quirin were held in 
military custody and tried by the military because we have long 
understood that when you join the enemy, that is not a crime but an act 
of war.
  We have very bad people who get a right to a jury trial. I will be 
the first one to say that when you go to court, no matter if you are 
the worst terrorist in the world, you will get a jury trial, you will 
get a lawyer, and you will have your due process rights. But the 
difference I am trying to inform the body of when you are fighting a 
war is the goal is not to prosecute people, the goal is to win. And how 
do you win a war? You kill them; you capture them; you interrogate them 
to find out what they are up to next. So I am here to say to my 
colleagues that the al-Qaida-Taliban efforts to do harm to our Nation 
are alive and growing. The narrative that al-Qaida has been decimated 
is a false narrative. What happened in Libya, unfortunately, is going 
to happen again.

[[Page S7184]]

  I know my good friend from California, who is the chairman of the 
Intelligence Committee, knows there are active efforts in our own 
backyard--and Joe Lieberman can tell you, too--to recruit American 
citizens to attack us--not to commit a crime, to join the enemy.
  All I am suggesting is that Barack Obama and every Commander in Chief 
in the future needs to have the tools available to protect us against 
an enemy. And the basic question is: Is fighting al-Qaida fighting a 
crime or fighting a war? I believe with all of my heart and soul that 
they do not want our property, they do not want our cars, they do not 
want our bank accounts, they want to destroy us. They hate what we 
stand for. Just as in World War II, when you decided to help the Nazis, 
you were held in military custody because you did something other than 
commit a crime.
  The goal here is if you capture an American citizen who has sided 
with the enemy that we preserve the ability of our military 
intelligence community to find out what they know about future attacks 
and present attacks. The goal of a criminal prosecution is to find 
justice under a criminal statute. The goal in time of war is to win.
  I do not believe in torturing people to get good information, but I 
do believe in interrogating them for military purposes if they have 
sided with the enemy.
  This is a great debate. But the one thing I do not want to associate 
myself with is as much as I may disagree with this President's agenda, 
there are people on my side of the aisle who are stirring up their 
fellow Americans, making them afraid that Barack Obama could use 
legitimate powers in a time of war to gather intelligence against 
people who sided with the enemy to come after them because they look 
different or they may have a different political belief. I want to 
disassociate myself with those on my side of the aisle who say that 
habeas corpus, an independent judiciary, is not an adequate check 
because Barack Obama may have appointed the judge. That undermines our 
judiciary. That creates paranoia. That creates a fundamental distrust 
of what I think is something we should be all proud of: America.
  This war will last probably longer than most of us. It is an 
ideological struggle. There is no capital to conquer, like Berlin and 
Japan. There is no air force to shoot down. There is no navy to sink. 
It is about an ideology that must be contained and fought, an ideology, 
unfortunately, that will be attractive to some Americans as it was in 
other wars.
  Unfortunately, as I speak today, the enemy is trying to come back to 
our shores and use some American citizens to further their cause. To an 
American citizen: Do not join al-Qaida or the Taliban. Do not turn on 
your country. Do not side with their view of humanity. If you do, you 
have not committed a crime, you have engaged in an act of war against 
the rest of us and we have a right to win this war. We have a right to 
hold you under the law of armed conflict as we have held others in the 
past, to find out why you joined, what you know, and what they are up 
to next. There is no American citizen in law of war custody. This 
President has not rounded up one person and put them in jail using the 
statute that exists today because they disagreed with him. I do not 
believe he will. All I am asking is that we have options available in 
this war that have existed in every war America has fought. Because 
here is my bottom-line belief, that as much as the Nazis represented a 
threat to humanity, al-Qaida represents an equal threat to humanity. 
And nobody in World War II would have entertained the idea that if you 
sided with the Nazis and you helped the saboteurs blow up parts of 
America, you should be considered anything other than an enemy who has 
joined the other side.

  So unlike criminal law, where you are trying to find justice for 
victims, this is about winning a war and marginalizing the enemy. And 
when the enemy is able to turn one of our own, the last thing in the 
world we should do is deny ourselves the ability to interrogate that 
person in a way to help us win the war and keep us safe. That has been 
the law forever when it comes to war. That is the law today, that will 
be the law tomorrow.
  I look forward to talking to Senator Levin, who has been a 100-
percent voice of reason, to talk about authorization to use force and 
the ability to detain.
  I will end with this thought: If you deny the ability to gather 
intelligence and detain, you do not want to put our troops in a 
position where they have to kill everybody they find. We want to 
capture the enemy when we can. Because when you capture the enemy, not 
only do you hurt the enemy, you find out a lot about what they are up 
to. Here is the question: If an American citizen is engaging in helping 
al-Qaida and the Taliban in a terrorist activity on our shores, are 
they the enemy? Yes, they are. We need to know about why they did what 
they did and what they are going to do next.
  With that, I will yield.
  Mrs. FEINSTEIN. Mr. President, how much time remains on our side?
  The ACTING PRESIDENT pro tempore. There is 9 minutes 15 seconds.
  Mr. LEVIN. How much time is there left on our side?
  The ACTING PRESIDENT pro tempore. There is 17 minutes 24 seconds.
  Mrs. FEINSTEIN. I will wait until the very end and give the 
distinguished chairman the opportunity.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. Mr. President, it would be my intent, if we need 
additional time, unless there is something else that is needed at about 
9:30 or so when this time runs out, to seek additional time for both--
for anyone who needs it, frankly. I do not know about both sides, 
because this is a multifaceted debate that we are going to have here 
tonight on this issue.
  I would yield myself 10 minutes. I would ask to be notified when I 
get to 10 minutes.
  The Feinstein amendment provides that no authorization for the use of 
military force may be construed to authorize the detention of U.S. 
citizens or lawful resident aliens who are captured inside the United 
States, unless--and this is a big ``unless''--an act of Congress 
expressly authorizes such detention.
  As I read the amendment, it says the military detention of U.S. 
citizens may be authorized in accordance with the law of war as long as 
this action is expressly authorized by Congress. Further, the 
amendment's requirement for express authorization applies only to the 
detention of U.S. citizens who are captured inside the United States. 
So no such authorization would be required for the detention of a U.S. 
citizen in the course of military operations overseas. I believe it is 
appropriate that Congress focus on the issue of military detention at 
the time they authorize the use of military force, as would be required 
by the Feinstein amendment.
  As the Supreme Court has stated: Detention is a fundamental and 
accepted incident to armed conflict. Without such authority, our Armed 
Forces could be put in the untenable position of being able to shoot to 
kill but not to capture and detain enemy forces.
  As to the ongoing conflict, I believe the 2001 authorization for the 
use of military force authorized the detention of U.S. citizens when 
appropriate in accordance with the laws of war.
  I base this view on the fact that the Supreme Court has said so.
  In the Hamdi case, the Supreme Court considered the relationship 
between the AUMF and the nondetention act which prohibits the detention 
of a U.S. citizen except where authorized by an act of Congress. The 
Supreme Court held in Hamdi that this statute does not preclude the 
detention of U.S. citizens on the battlefield in Afghanistan because 
the 2000 authorization for the use of military force, quoting the 
Supreme Court, ``is explicit congressional authorization for the 
detention of individuals'' in such circumstances. The Court explained 
that such detention is so fundamental and accepted as an incident to 
war as to be an exercise of the ``necessary and appropriate force'' 
that Congress authorized the President to use in the AUMF. In other 
words, the Supreme Court has already concluded that the authorization 
to use necessary and appropriate force is an explicit authorization to 
detain enemy combatants in accordance with the law of war, and that 
meets the test of the Feinstein amendment.
  Any other conclusion would lead to absurd results, under which we 
would tie the hands of our Armed Forces even

[[Page S7185]]

in the face of an actual invasion. For example, if a group of 
terrorists were to approach one of our Navy bases in boats loaded with 
bombs, our sailors protecting those ships at that base would be in the 
untenable position of being able to shoot to kill, but not to capture 
the enemy forces if Hamdi did not reach the conclusion it did.
  Similarly, in the unthinkable event that we were to experience a 9/
11-type attack, our military would be in the untenable position of 
having the authority to shoot down the hijacked aircraft but not to 
force them to land and to capture the enemy hijacker. Of course, we 
could not expect our military to inquire as to whether any of the enemy 
force were American citizens before deciding on the level of force to 
be applied.
  As the Supreme Court explained in its Hamdi decision, ``the capture, 
detention, and trial of unlawful combatants, by 'universal agreement 
and practice,' are 'important incidents of war''' and a ``fundamental 
and accepted incident to war.''
  What the Supreme Court said in Hamdi is explicit in the AUMF, in the 
authorization for use of military force, the core ``law of war'' 
authority for our military to capture and detain those who join enemy 
forces at a time of war and plan or participate in attacks against us. 
This core authority to use less than lethal force, rather than lethal 
force, in appropriate circumstances must be available to our military 
whenever and wherever it engages with the enemy.
  Again, Senator Feinstein's amendment does not prohibit the military 
detention of U.S. citizens who are captured or apprehended inside the 
United States because a U.S. citizen who joins a foreign army and 
attacks the United States should be subject to detention as an enemy 
combatant if it does not prohibit military detention and if it is 
expressly authorized by law. I read this as a statute authorizing the 
use of military force itself or some other act of Congress.
  This is a major difference between or from the amendment Senator 
Feinstein offered last year, which included no exception for 
congressional authorization. This new approach is appropriate because I 
believe that Congress ought to address the issue of detention of U.S. 
citizens when captured in the United States at the time that we 
authorize the use of force.
  The Supreme Court in Hamdi held that the existing authorization for 
use of military force does address this issue and does explicitly, in 
their words, authorize detention of U.S. citizens in that situation 
which was on the battlefield in Afghanistan, but that it explicitly, 
again in the words of the Hamdi Court, authorized the detention of U.S. 
citizens in the case of an individual who was captured in Afghanistan 
who was attacking U.S. forces.
  I believe the same reasoning applies to persons who join foreign 
armies and attack us militarily here in the United States when they 
bring the war here to the United States and attack us here. If they 
attack a Navy base and are captured by sailors defending their ships, 
the same logic that Hamdi applied to an attack in Afghanistan against 
our forces applies here. That is the same reason they used in that case 
to find that there was an explicit authorization for the detention of 
U.S. citizens in the Afghanistan circumstance; that it is an inherent 
fundamental function of war, that you be able to capture and detain 
people who are at war with you, applies when that act of war is carried 
out here in the United States, such as in the attack on a Navy base.
  I request 1 additional minute.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. LEVIN. The Feinstein amendment provides an appropriate signal to 
Congress that in an authorizing context they should be aware of 
detention authority issues. Therefore, I intend to vote for the 
Feinstein amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from New Hampshire.
  Ms. AYOTTE. Mr. President, may I ask how much time remains on our 
side and on the other side?
  The ACTING PRESIDENT pro tempore. There is 17 minutes remaining.
  Ms. AYOTTE. There is 17 minutes remaining in opposition?
  The ACTING PRESIDENT pro tempore. Yes.
  Ms. AYOTTE. Mr. President, I rise to agree with my colleague Senator 
Levin, the chairman of the Armed Services Committee, in his 
interpretation of the Hamdi decision with regard to the review of the 
current amendment pending before us. The Feinstein amendment includes 
different language than the amendment that was brought forward and 
defeated in this body last year. The language says in 2(b)(1) that 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.
  I do view, as does my colleague from Michigan, Senator Levin, the 
Hamdi decision that was decided before our U.S. Supreme Court as 
rendering an opinion that the current authorization for the use of 
military force that is in effect for our country gives explicit 
congressional authority for the detention of individuals such as in the 
case of Hamdi. He was an American citizen engaged in the battle against 
our country and would fall underneath the authorization for military 
force. In the Hamdi decision, the Court said that the AUMF, which has 
currently been approved by Congress, having the full force and effect 
of law, gives explicit congressional authorization for such detention.

  I too believe, as Senator Levin has said, under that authorization, 
the Hamdi decision would be interpreted similarly if an individual who 
was a covered individual--a member who was covered by the authorization 
for military force but was nevertheless a United States citizen--was 
caught here committing an act of terrorism in this country. Our Supreme 
Court has already interpreted that in Hamdi in such a way. I wanted to 
add my support for his interpretation of the current Feinstein language 
in that way.
  I wish also to say in response to the arguments of some of my 
colleagues that if the argument that is being made is this, that if you 
are an American citizen who is captured in this country committing an 
act of terrorism against our country and collaborating with al-Qaida, 
committing belligerent acts in this country, then you should be held 
under the law of war. If you are not, then we will have to give you 
Miranda rights. We will have to tell you you have the right to remain 
  Let me remind you, in those situations, can you imagine if an 
American citizen had been one of the collaborators of 9/11, would we 
want to tell a member of someone who had committed an act like 9/11 
against us--an act of war against this country--the first thing you 
hear is you have the right to be silent? Our goal is we have to be 
there to gather intelligence to see if there is another attack coming. 
Is it coming to the Pentagon, is it coming to the White House, is it 
coming to that second tower? Then we can protect American lives.
  That is the difference between war and common crime. That is an 
important distinction that has been recognized long before--with all 
respect to my colleague from Kentucky--in World War II in In Re: 
Quirin. Our U.S. Supreme Court in World War II recognized this 
authority, the difference between the law of war. In that case an 
American citizen who collaborated with the Nazis was held under the law 
of war because our country was at war.
  I would also wish to point out that this would only cover under the 
current law authorized by this Congress. It would not apply to someone 
who is holding ammunition or someone who is paying with cash. It only 
applies to a person who has planned, authorized, committed, or aided 
the terrorist attack that occurred on 9/11 or harbored those 
responsible for the attacks, or a person who has a part or 
substantially supported al-Qaida, the Taliban, or associated forces 
that are engaged in hostilities against the United States or its 
coalition partner, including any person who has committed a belligerent 
act or directly supported such hostilities in aid of enemy forces 
against our country.
  That is very different than some of the examples that were cited 
here. It is

[[Page S7186]]

called being a member of al-Qaida, being involved in September 11, 
being a member of the Taliban and committing belligerent acts against 
this country. That is terrorism.
  Let me point out what I think is the most absurd distinction of all. 
This is Anwar al-Awlaki. He is someone who is a U.S. citizen. He is 
someone who was an influential leader in al-Qaida in the Arabian 
Peninsula. He advocated for violent jihad. He was involved in a dozen 
terror investigations. He was alleged to be involved in killing 
Americans and collaborating to kill our allies. On September 30, 2011, 
it was reported that al-Awlaki was killed by the CIA in a drone strike 
in Yemen. Yet it is being interpreted, as we have heard by some of my 
colleagues represented here, if the Feinstein amendment were 
interpreted the way they have interpreted, if al-Awlaki made it to 
America to commit these terrorist acts, he gets his Miranda rights. He 
gets all his rights here. But yet if he is in Yemen to do these acts, 
to try to kill Americans and our allies, then we can use a drone attack 
to him. But if he makes it to America--which, by the way, the 
terrorists want to make it to America; 9/11 is Exhibit A of that--why 
do we want to be in a position to read them their Miranda rights, tell 
them you have the right to remain silent? Our priority there has to be 
protecting American lives. That is the distinction between the law of 
war and a common criminal in this country.
  By the way, there are protections under the law. It is the right of 
habeas corpus where you do have a right to challenge your detention 
before the Federal court through appeals with counsel. That is 
certainly a protection that we have respected in this country for a 
long time.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I would like to inform the body that I 
think Senator Levin's understanding and reasoning is incredibly sound. 
We have actually been talking about this for a couple of days. And in 
light of the Hamdi decision and just plain old common sense, I will 
support the Feinstein amendment.
  I will be the first to say that if we are attacked by the Iranians 
tomorrow or some other group, we have an authorization to use force. 
Senator Levin and I will be the first to say in that authorization that 
it will provide that if an American citizen joins the Iranians in a war 
against America, they can be detained under the law of war.
  Now, you can vote however you like. I know how I will vote. But this 
has already gone up to the Supreme Court. And if I can build on what 
Senator Levin said as to the logic of the Court and I think the logic 
of our position, let's get us back to the United States. I don't think 
anybody in their right mind would say the United States is not part of 
the battlefield in the war on terror. I would suggest that of all the 
places the enemy wants to hit us, they want to hit us here at home the 
most. Their goal is to kill us here. They will kill us in Libya, they 
will kill us in Afghanistan, they will attack our consulates, they will 
kill our soldiers, they will blow up our embassies, they will hit us 
all over the world, but don't be misled--they want to hit us here. 
Remember 9/11? I do. I am sure you all do.
  You know what. The only reason we haven't had another 9/11 is we have 
been fighting these bastards over there, where we have been getting 
good intelligence. It took a couple of years before any of the people 
held at Guantanamo Bay told us what was going on, but we found out 
about bin Laden--and not because we tortured people but because we put 
the intelligence puzzle together over time by holding people under the 
law of war and gathering good intelligence. That is how we got bin 
Laden. So bin Laden is dead, but the war is not over. I wish it were.
  Now, the homeland. If there is a planned attack on a Navy vessel or a 
military installation, I think the point Senator Levin was making is 
that we have already authorized the use of force to protect the country 
against the Taliban and al-Qaida; is that right?
  Mr. LEVIN. That is my opinion, and that is the fundamental core 
ruling in the Hamdi case. Now, we have to be accurate. Hamdi applied 
circumstances to citizens that were captured in Afghanistan, but the 
reason they use led them to conclude there was an explicit--explicit--
authorization to detain those citizens even though they are American 
citizens. Their argument was that capture and detention was inherent, 
in their words--so fundamental--to capture and detain as such is an 
accepted incident to war as to be an exercise of the necessary and 
appropriate force which Congress authorized the President to use.
  So in my analogy, if a boatload full of al-Qaida, including an 
American citizen, comes to a Navy base and attacks that base and is 
captured by those sailors, that is surely an incident of war, and I 
believe the capture and detention of those al-Qaida terrorists would be 
the exercise of necessary and appropriate force which we authorized the 
President to use in the authorization for military force.
  Mr. GRAHAM. I want to build on that just to make sure we understand 
about a potential attack on a Navy base here at home. No one is 
suggesting the military could not use force against an al-Qaida attack 
here at home. The Hamdi case was an American citizen captured in 
Afghanistan. I hope we are not trying to create a picture that somehow 
America is a place where our own military cannot fire a shot in defense 
of their ships or our country.
  Let's say we have some ships up there in Virginia and we have a 
boatload of al-Qaida types trying to ram the ship. Does the Senator 
agree with me that our military can use force to defend us here at home 
against al-Qaida?
  Mr. LEVIN. That is correct.
  Mr. GRAHAM. So if our military is authorized to use force, they do 
not have to call the FBI or the Virginia State Police to shoot. They 
can shoot against an enemy themselves coming at them in America.
  Mr. LEVIN. Coming into America and attacking us on a Navy base or----
  Mr. GRAHAM. Right. Because we are not fighting a crime. We don't have 
to disarm our military and call the local cops and say: Would you 
please shoot these people before they get here? No. Our guys are going 
to shoot you. If you are an American citizen asked to get in a boat and 
asked to attack a military ship or installation in the United States, 
we are going to shoot you, and if we wound you, we are going to capture 
you. And here is what we are going to do to you as an incident of using 
force. The Supreme Court has said that when you authorize the use of 
force, it makes no sense to give that authorization if you don't have 
the power to detain because the worst thing you can do to the American 
military is to make them kill everybody and capture no one or let the 
other guys go. So kill-them-all is not good policy, and it is a bad 
spot to put your military in. And the option shouldn't be to kill them 
all or let them all go; the option should be to kill where you have to 
and, if you can, capture. Does the Senator agree with that?
  Mr. LEVIN. I do.
  Mr. GRAHAM. And our military can fire the shots because of the use of 
force to defend the homeland and to defend themselves here at home. And 
the Supreme Court says that once you authorize the ability to use 
force, it just follows, as night follows day, that detention is part of 
the ability to use force because, ladies and gentlemen, if it is not, 
you have turned our military into murderers because you are not 
supposed to shoot somebody and leave them wounded in the water, and you 
shouldn't watch them swim away. You capture them and interrogate them 
under the law of war. Isn't that what Hamdi is about and the point they 
are trying to make?
  Mr. LEVIN. It is. As part of that point, it cites the Quirin case, 
which says:

       Citizenship in the United States of an enemy belligerent 
     does not relieve him from the consequences of a belligerency 
     which is unlawful because in violation of the law of war.

  And here are the key words:

       Citizens who associate themselves with the military arm of 
     an enemy government, and with its aid, guidance and direction 
     enter this country bent on hostile acts, are enemy 
     belligerents within the meaning of the Hague Convention.

  Mr. GRAHAM. I will read another quote from Hamdi.

       There is no bar to this Nation's holding one of its own 
     citizens as an enemy combatant.

[[Page S7187]]

  Hamdi's detention could last for the rest of his life because the law 
of war detention can last for the duration of the relevant conflict.
  Here is what we are trying to do. We are trying to create a system 
consistent with the Hamdi decision, and quite frankly, ladies and 
gentlemen, what I am trying to avoid is the criminal paradigm because I 
know the difference between criminal law and law of war. Under the law 
of war, you can detain somebody for interrogation to find out what the 
enemy is up to if you believe that person to be part of the enemy.
  And let me tell my friends, I do not want to take our criminal 
justice system and bastardize it. During the Bush years when we had the 
military commission rollout, they had a provision that in a military 
commission trial, the military jury could be given classified 
information but not share it with the defendant. I said: No. If a trial 
means anything, it means the right to confront those witnesses against 
you. I jealously guard that. The worst al-Qaida member in the world, 
when they go on trial in military commissions, will have a lawyer, a 
right to appeal to our Supreme Court, and will be able to confront 
every witness against them. An American citizen who joins al-Qaida or 
the Taliban will be tried in Federal court because we took military 
commissions off the table. That is the trial.
  Here is the main point: If you are allowing our military to use force 
to protect themselves, as Hamdi says, it naturally follows that with 
the use of force comes the lawful detention. And that is why I will be 
voting for Feinstein. I think that is where most Americans are. If 
there is any confusion, we can talk about this in conference.
  But, Senator Levin, I want to thank you for--since 2006--working with 
me and against me. You know, our dispute about what would be an active 
substitute for habeas went to the Supreme Court, and you won 5 to 4. 
Damn those Justices, but that is the way it goes. And you know what. 
There were some Republicans and Democrats who disagreed with me and you 
both. But I respect an independent judiciary, and I know Justice 
Roberts kind of got some people mad at him because of the ObamaCare 
decision, but that is the way it goes. That is the way these old judges 
are. I just really appreciate an independent judiciary.
  I just want to say that after that decision in 2006 or 2007, how much 
of a pleasure it has been to work with you and others to try to find a 
way to achieve a balance in a war that is hard to understand. There is 
no capital to conquer, no airplanes to shoot down in terms of their jet 
fighters, there is no navy to sink, but they use boats to attack us and 
they use private planes to kill us. At the end of the day, we are at 
war. The outcome does matter, and I want to win this war. I know 
everybody in this body wants to win this war. But I want to live within 
our values.
  So I will work with Senator Levin and Senator McCain and say that 
even though we are fighting the worst people on the planet, count me 
out when it comes to waterboarding. I remember when people on my side 
would say--and I understand them very well--why do you care about what 
we do to these people? They will cut our heads off.
  Because we are Americans. It is not necessary to go down that road to 
win the war. And quite frankly, ladies and gentlemen, the opposite is 
true. You can't win this war if you don't realize you are in a war. We 
are not fighting common crime, we are fighting a vicious enemy. And we 
can do it within our values. We can do it within due process consistent 
with the law of war and, when we get in that criminal arena, consistent 
with criminal law.
  As much as I disagree with this President, I will not deny him the 
ability that every Commander in Chief has had for decades as an option, 
if he chooses to use it. And if you want to go down the criminal road, 
we can, but we need the option. As much as I dislike President Obama, I 
am not going to use as a reason to change the law of war that Barack 
Obama may put some people in jail who disagree with him, and I am not 
going to buy into some of the rhetoric coming out of our side that a 
habeas corpus independent judiciary view means nothing if Obama 
appointed the judge. We are better than that.
  I stand ready to vote for Feinstein, I stand ready to work with my 
colleagues to continue to find a way to fight and win a war within our 
values, the outcome of which will matter not only to us but those who 
  God bless every person on the front line who is risking their life at 
home and abroad. And here is what you have as a promise between Senator 
Levin and myself and many others: We are going to give you the tools to 
keep us safe and to keep your comrades safe. We are not going to do 
things in this war that made no sense in other wars. You need our help, 
you need our prayers, and you need the tools to fight and win this war, 
and we will give you those tools.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. PAUL. Mr. President, even though my colleagues sometimes appear 
to have disdain for the trial by jury, it now appears they are 
supporting the right to trial by jury, and so I congratulate them on 
their conversion. However, I think they are still a little confused on 
  Hamdi had to do with a citizen fighting overseas and nothing to do 
with a citizen here. I have great confidence that the Supreme Court, 
given a ruling on the right to trial by jury, will affirm the right to 
trial by jury whether they were appointed by Ronald Reagan or President 
Obama. So we will have that fight on another day.
  I will say, though, that our oath of office says we will defend the 
Constitution against enemies foreign and domestic.
  I met with cadets this week and they asked me, What is the freedom we 
fight for? The freedom we fight for is the Bill of Rights, is the 
Constitution. If we have careless disregard for the Constitution, what 
are we fighting for?
  I will tell you, since I know the record of this debate will be 
widely read, I want to make formal objection to the crazy bastard 
standard. I don't think if we are going to have a crazy bastard 
standard that we shouldn't have a right to trial by jury. Because if we 
are going to lock up all the crazy bastards, for goodness sake, would 
you not want, if you are a crazy bastard, to have a right to trial by 
  I think this is a very serious debate and should not be made 
frivolous. This is an ancient right that we have defended for 800 
years. To say that habeas is due process is absurd. It is the beginning 
of due process. If you don't have a right to trial by jury, you do not 
have due process. You do not have a constitution. What are you fighting 
against and for if you throw the Constitution out, if you throw the 
sixth amendment out? It is in the body of our Constitution. It is in 
the Bill of Rights. It is in every Constitution in the United States. 
Trial by jury has been a longstanding and ancient and noble right. 
Let's not scrap it now.
  I will accept victory today. I hope we will win victory and reaffirm 
the right to trial by jury. But let's don't play any games with any 
aspect and believe that any Supreme Court in the United States, whether 
appointed by Republican or Democrat, is going to say that an American 
citizen does not have a right to trial by jury.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. If Mr. President could tell me what the respective 
times for either side in this amendment are?
  The ACTING PRESIDENT pro tempore. The opposition time has expired. 
Proponents have 6 minutes remaining.
  Mr. LEVIN. If the Senator would yield.
  Mrs. FEINSTEIN. I will.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan.
  Mr. LEVIN. We are significantly over our time, I believe. We would be 
happy to accommodate Senator Feinstein or others.
  Mrs. FEINSTEIN. I just wanted to thank everybody. I think we had a 
good debate. I think we ended in a good place. I am very hopeful that 
the body will pass this now by a large majority. So I hope we are 
successful tonight in achieving something that hasn't been achieved for 
  I want to thank everybody, our cosponsors, the chairman of the 
committee, and Senator Graham for the debate.
  The ACTING PRESIDENT pro tempore. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, that was a good debate. Senator 

[[Page S7188]]

is always gracious and alert and smart in her arguments.
  I want to say one thing that is not in doubt. Some of my colleagues--
I think Senator Paul and others--have suggested that somehow the law of 
the United States has been changed in recent years, and we need the 
Feinstein amendment to fix it and restore the constitutional rights we 
are all entitled to.
  What I want to say, without any doubt and I think any fear of real 
contradiction, is this amendment alters the history of the United 
States, alters the long-term understanding of the rules of war, and 
places American citizens in a position where they cannot be treated 
effectively as an enemy of the state and detained, and actually be in a 
position to be released to continue their war against the United 
States. I think that is a bad policy.
  I agree with Senators Levin, Ayotte, and others who share their view. 
I am not quite able to understand--and I am not sure Senator Feinstein 
does--that this therefore establishes through understandings of Hamdi 
and the Supreme Court decision that therefore we can vote for it. I 
don't think it is the right step. I don't think we should alter the 
historical position of the United States that those who are at war with 
the United States are not treated as criminals. Southerners who were 
captured by Lincoln weren't released. When Washington dealt with the 
Whiskey Rebellion, he sent out Alexander Hamilton. They weren't given 
Miranda rights. They went out there to stop the rebellion. They were 
citizens. That is the way I feel about it.


  Mr. CORNYN. Mr. President, tonight the Senate will vote on an 
amendment offered by the senior Senator from California that affects 
the lawful authority of the U.S. military to detain enemy belligerents 
during wartime. This issue is necessarily complicated and difficult 
because the universe of detainees at issue includes U.S. citizens who 
are captured on American soil while taking up arms against their fellow 
citizens in the name of a foreign power or global terrorist 
  This is not an abstract issue. The U.S. homeland remains a target for 
al Qaida terrorists, who hide among civilian populations and have 
successfully recruited our fellow citizens to carry out acts of 
  Some of my colleagues contend that U.S. citizens forfeit their 
citizenship when they commit terrorist acts or acts of war against 
their fellow citizens but that they nevertheless should be tried and 
treated as common criminals with all of the attendant constitutional 
rights. Others believe that U.S. citizen-enemy combatants forfeit their 
constitutional rights altogether and can be detained indefinitely by 
the military without any judicial review.
  I respectfully reject both of these positions. It is entirely 
consistent with both the Constitution and laws of war for the U.S. 
military to detain such individuals pursuant to a force authorization 
or war resolution until the cessation of hostilities. To be sure, there 
is historical precedent for this proposition. What is critical to 
remember and too often seems to be omitted from this debate is that a 
U.S. citizen or any other person lawfully inside our nation's borders--
who is detained by our military does not forfeit their rights to habeas 
corpus review in a Federal court. In other words, they retain the 
constitutional right to challenge their detention before an impartial 
civilian judge.
  The Supreme Court has noted that the ``writ of habeas corpus is the 
fundamental instrument for safeguarding individual freedom against 
arbitrary and lawless state action.'' And, in fact, a citizen's right 
to habeas corpus extends all of the way to review by the U.S. Supreme 
Court, the highest Court in the land.
  In closing, what I find so confounding about this debate is the fact 
that groups like the American Civil Liberties Union, ACLU, Human Rights 
Watch, and Amnesty International have urged the Senate to reject the 
Feinstein amendment. These groups have said that a vote against the 
Feinstein amendment would send a clear message about our commitment to 
constitutional rights. I respect the views and passion of these groups 
but would urge a vote against the amendment for a different reason: 
namely, I believe that we can keep faith with the Constitution and 
maintain the global fight against al-Qaida.
  Mr. DURBIN. Mr. President, I will support the Feinstein-Paul 
amendment. This amendment would make it clear that Congress has not 
authorized the indefinite detention of American citizens or lawful 
permanent residents apprehended in the United States without charge or 
trial. This is a common-sense amendment that should be completely 
noncontroversial. It has long been understood that is unconstitutional 
to indefinitely detain someone apprehended in the United States without 
charge or trial. Indeed, the fifth amendment of the Constitution 
provides simply that ``no person shall be . . . deprived of life, 
liberty, or property without due process of law.''
  Indefinite detention in the United States is not just 
unconstitutional, it is unnecessary. Look at the track record. Since 9/
11, our counterterrorism professionals have prevented another terrorist 
attack in the United States. And more than 400 terrorists have 
successfully been prosecuted and convicted in federal court. Here are 
just a few of the terrorists who have been convicted in federal court 
and are serving long prison sentences: Umar Faruk Abulmutallab, the 
Underwear Bomber; Ramzi Yousef, the mastermind of the 1993 WTC bombing; 
Omar Abdel Rahman, the so-called ``Blind Sheikh''; 20th 9/11 hijacker 
Zacarias Moussaoui; and Richard Reid, the ``Shoebomber''.
  Some of my colleagues have claimed that the Supreme Court's Hamdi 
decision upheld the indefinite detention of U.S. citizens captured in 
the United States, but it did no such thing. Hamdi was captured in 
Afghanistan, not the United States. And Justice O'Connor, the author of 
the opinion, was very careful to say that the Hamdi decision was 
limited to, ``individuals who fought against the United States in 
Afghanistan as part of the Taliban.''
  Some of my colleagues also cited the case of Jose Padilla, claiming 
that it is a precedent for the indefinite detention of U.S. citizens 
captured in the United States. But look at what happened in the Padilla 
case. Padilla is a U.S. citizen who was placed in military custody in 
the United States. The 4th Circuit Court of Appeals, one of the most 
conservative courts in the country, upheld Padilla's military 
detention. But then, before the Supreme Court had the chance to review 
the 4th Circuit's decision, the Bush administration transferred Padilla 
out of military custody and prosecuted him in criminal court. To this 
day, the Supreme Court has never ruled on the question of whether it is 
constitutional to indefinitely detain a U.S. citizen captured in the 
United States.
  A number of prominent civil liberties and human rights organizations 
have expressed their concern that because the Feinstein-Paul amendment 
only prohibits indefinite detention of U.S. citizens and lawful 
permanent residents, it implicitly authorizes indefinite detention of 
others apprehended in the United States. I am very sympathetic to this 
concern. As Senator Feinstein and Senator Paul have both said on the 
floor of the Senate, they oppose the indefinite detention of anyone 
apprehended in the United States, including non-U.S. citizens and non-
lawful permanent residents. I agree.
  Senator Feinstein and Senator Paul included language in this 
amendment to make it clear that we are not implicitly authorizing the 
indefinite detention of individuals who are not U.S. citizens or legal 
permanent residents. On page 2, line 14, the amendment says

[[Page S7193]]

that the prohibition on indefinite detention of U.S. citizens and legal 
permanent residents ``shall not be construed to authorize the detention 
of . . . any other person who is apprehended in the United States.'' So 
in adopting this amendment, the Senate is not implicitly authorizing 
the indefinite detention of anyone.
  To the contrary, the language I have just quoted makes it clear that 
this amendment does not change existing detention authority of non-U.S. 
citizens and non-lawful permanent residents in any way. What does that 
mean? It means that the Supreme Court will decide whether non-U.S. 
citizens and non-lawful permanent residents can be detained 
indefinitely without trial, not the United States Senate.
  I want to thank Senator Feinstein and Senator Paul for their 
leadership on this issue and am proud to support their amendment.
  Mrs. FEINSTEIN. Mr. President, in 1971, 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.
  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 U.S. citizens argue that the 
Authorization for Use of Military Force, 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.
  We heard this argument again tonight from Senators Levin and Graham. 
They 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.
  But let me discuss the facts of Hamdi 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 detain even 
U.S. citizens who are arrested domestically.
  However, the Supreme Court's opinion in that case was a muddled 
decision by a four-vote plurality that recognized the power of the 
government to detain U.S. citizens captured in such circumstances 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 legal ambiguity, principally 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 attacks.
  In Padilla v. Rumsfeld the Second Circuit Court of Appeals held that 
the 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 ``is not such an authorization, and no exception to 
[the Non-Detention Act] otherwise exists.''
  I think this history is particularly important in light of tonight's 
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, we have one more vote to start in just a few 
minutes. Senator Levin wants to say something about the schedule for 
  Senator Levin.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. We are going to be making a unanimous consent request, and 
would like to do it right now, that tomorrow morning there be debate 
and votes on the following five amendments: Senator Sessions on 
bilateral discussions with Afghanistan, Sessions amendment No. 3009; 
Cardin amendment No. 3025 on civilian personnel; Menendez amendment No. 
3232 on Iran sanctions; Bill Nelson amendment No. 3073 involving widows 
and orphans; and Coburn amendment No. 3254 involving second amendment 
rights for veterans.
  My request is that we have--I will make a unanimous consent request 
now that tomorrow morning, at whatever time is allotted for morning 
business by the leaders----
  Mr. REID. There will be no morning business.
  Mr. LEVIN. There will be no morning business--that we then proceed. 
Now we don't have time agreements yet on these five. That is going to 
take a few minutes. My unanimous consent request is that immediately 
after prayer tomorrow we move to these five amendments. We will 
allocate as little time as we can tonight after this unanimous consent 
agreement is agreed to, if it is.
  Mr. SCHUMER. Reserving the right to object, would this allow a vote, 
an up-or-down vote on the Coburn amendment? Would this allow an up-or-
down vote on the Coburn amendment?
  Mr. LEVIN. This will.
  Mr. SCHUMER. I object.
  The PRESIDING OFFICER. The objection is heard.

                       Vote On Amendment No. 3018

  The PRESIDING OFFICER. Under the previous order, the question is on 
agreeing to amendment No. 3018, offered by the Senator from California, 
Mrs. Feinstein.
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. 
Rockefeller) and the Senator from Oregon (Mr. Wyden) are necessarily 
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Nevada (Mr. Heller) and the Senator from Illinois (Mr. Kirk).
  Further, if present and voting, the Senator from Nevada (Mr. Heller) 
would have voted ``yea.''
  The PRESIDING OFFICER (Mr. Pryor). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 67, nays 29, as follows:

                      [Rollcall Vote No. 213 Leg.]


     Brown (OH)
     Johnson (SD)
     Nelson (FL)
     Udall (CO)
     Udall (NM)


     Brown (MA)
     Johnson (WI)
     Nelson (NE)

                             NOT VOTING--4

  The amendment (No. 3018) was agreed to.