December 19, 2011
Thank you for contacting me about the detainee provisions in the National Defense Authorization Act. I appreciate hearing from you on this very important issue.
On December 15, 2011, the Senate passed a bill including provisions on detention that I found simply unacceptable. These provisions are inconsistent with the liberties and freedoms that are at the core of the system our Founders established. And while I did in fact vote for an earlier version of the legislation, I did so with the hope that the final version would be significantly improved. That didn’t happen, and so I could not support the final bill.
The bill that passed included several problematic provisions, the worst of which could allow the military to detain Americans indefinitely, without charge or trial, even if they’re on U.S. soil. Another provision requires the military-not civilian law enforcement agencies like the FBI-to detain anyone that it believes to be a member of al Qaeda or an associated force and who helped plan or carry out an attack on the U.S. or its allies. At their core, these provisions will radically alter how we investigate, arrest, and detain individuals suspected of terrorism. This leaves it unclear what role the FBI and other law enforcement agencies are to play, despite their proven effectiveness at preventing attacks on our homeland since September 11th. This comes despite deep concerns voiced by FBI Director Robert Mueller before the Senate Judiciary Committee, of which I’m a member. What’s more, these provisions could undermine the safety of our troops stationed abroad.
During consideration of the National Defense Authorization Act, I expressed my strong opposition to these provisions on the floor of the Senate. I filed two amendments to strip each of the provisions, but unfortunately neither received a vote. I also voted in favor of several amendments that would have made significant improvements to the provisions; none of these passed.
September 11th irrevocably and unalterably changed our lives. But it is exactly in these difficult moments, in these periods of war, when our country is under attack, that we must be doubly vigilant about protecting what makes us Americans. The Founders who crafted our Constitution and Bill of Rights were careful to draft a Constitution of limited powers-one that would protect Americans’ liberty at all times-both in war, and in peace.
As we reflect on what this bill will do, I think it is important to pause and remember some of the mistakes this country has made when we have been fearful of enemy attack. Most notably, we made a grave, indefensible mistake during World War II, when President Roosevelt ordered the incarceration of more than 110,000 people of Japanese origin, as well as approximately 11,000 German-Americans and 3,000 Italian-Americans.
In 1971, President Richard Nixon signed into law the Non-Detention Act to make sure the U.S. government would never again subject any Americans to the unnecessary and unjustifiable imprisonment that so many Japanese-Americans, German-Americans, and Italian-Americans had to endure. It wasn’t until 1988, 46 years after the internment, when President Reagan signed the Civil Liberties Act, that the government formally acknowledged and apologized for the grave injustice that was done to citizens and permanent residents of Japanese ancestry. These were dark, dark periods in American history. And it is easy today to think that is all behind us.
But I fear the detention provisions in the bill forget the lessons we learned from the mistakes we made when we interned thousands of innocent Japanese, Germans, and Italians. With this National Defense Authorization Act, Congress will for the first time in 60 years authorize the indefinite detention of U.S. citizens without charge or trial-according to its advocates. This would be the first time that Congress has deviated from President Nixon’s Non-Detention Act. And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.
I think that is highly problematic. It ignores what our Founders intended when they created a civilian, non-military justice system for trying and punishing people for crimes committed on U.S. soil. Our Founders were fearful of the military-and they purposely created a system of checks and balances to ensure we did not become a country under military rule. This bill undermines that core principle, which is why I could not support it.
On the same day that I voted against this legislation, I joined a number of my colleagues in introducing the Due Process Guarantee Act, which would explicitly prohibit the military from holding Americans caught in the U.S. in indefinite detention without charge or trial. I will be working to get this important legislation enacted into law.
Thank you again for contacting me, and please don’t hesitate doing so in the future regarding this or any other matter of concern to you.
United States Senator