Lee Urges Colleagues to Support Due Process Guarantee Amendment

June 9, 2016

Mr. President: I rise today to discuss – and to urge my colleagues to support – amendment #4448, the Due Process Guarantee Amendment.

This amendment addresses a little-known problem that I believe most Americans would be shocked to discover even exists.

Under current law, the federal government has the power to detain indefinitely – without charge or trial – U.S. citizens and lawful permanent residents who are apprehended on American soil.

Let that sink in for a moment.

If you are a United States citizen or a U.S. Green Card holder, and you are arrested on American soil because you are suspected of supporting a terrorist group or other enemy of the United States, the federal government has the power to detain you indefinitely without formally charging you or offering you a trial.

I’m not talking about American citizens who travel to foreign lands to take up arms against the U.S. military and are captured on the battlefield. I’m talking about U.S. citizens apprehended right here in America. Under current law, even they can be imprisoned for an unspecified period of time without ever being charged or given a trial.

You don’t need to be a defense attorney to recognize what an outrage this is.

Arresting U.S. citizens on American soil and then detaining them indefinitely without charge or trial is an obvious deviation from the constitutional right to due process of law. The last time the federal government exercised such a power – during the internment of Japanese-Americans during World War II without congressional authorization – Congress responded by passing a law to prevent it from happening again.

Of course, such legal protection should not need to be codified into federal statute.

The Fifth Amendment to the Constitution states in no uncertain terms that “No person shall be [...] deprived of life, liberty, or property, without due process of law.” But then again, as James Madison reminded us, “If men were angels, no government would be necessary.”

So in the wake of World War II, Congress passed, and President Nixon signed, the Non-Detention Act of 1971, which states: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

Those last few words are crucial: “except pursuant to an Act of Congress.” The Non-Detention Act of 1971 recognized – as I believe most Americans do – that in some cases – in some grave, treacherous, unfortunate cases – indefinite detention of U.S. citizens may become necessary.

But the point is that the federal government does not inherently possess the power of indefinite detention. To the extent such power can even be said to exist within our constitutional framework, only “an Act of Congress” – such as an Authorization for Use of Military Force (AUMF) – can give the federal government that power.

But fast forward 40 years and this important legal protection has eroded.

In 2011, Congress passed its annual National Defense Authorization Act (NDAA) for 2012 – the predecessor of the bill we’re considering today. In the 2012 NDAA there is a provision in Section 1021 giving the federal government the power to detain U.S. citizens indefinitely without trial – even those who are apprehended on American soil.

Now, it may sound like Section 1021 meets the “Act of Congress” threshold established by the Non-Detention Act of 1971, but it does not.

Here’s why: the language of Section 1021 merely presumes that the 2001 AUMF gives the federal government the right to detain U.S. citizens indefinitely without having to prove anything – even though an explicit grant of such power appears nowhere in the 2001 AUMF.

My amendment would resolve this problem. In clear and straightforward language, my amendment clarifies that “A general authorization to use military force, a declaration of war, or any similar authority, on its own, shall not be construed to authorize the imprisonment or detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.”

This means that if Congress believes it is necessary to have the power to indefinitely detain U.S. citizens who are captured in the U.S., then Congress must expressly say so in any authorization it passes.

My amendment recognizes that the due-process protections of U.S. citizens are far too important to leave up to implied legal contemplation.  

The 2001 AUMF does not expressly state that the federal government has the power to detain indefinitely U.S. citizens who are apprehended on American soil. So if those who believe that it is in the national-security interests of the United States for the federal government to have this power, they should file an amendment to the AUMF that says so explicitly, and then we can see what the American people and their elected representatives think.

Mr. President, this amendment should not be controversial.

In fact, in 2012 the Senate passed this amendment with 67 votes – in large part thanks to the tireless efforts by my distinguished colleague, the senior Senator from California, Dianne Feinstein, who joins me as a co-sponsor of the amendment today.

Unfortunately, the Due Process Guarantee Amendment was stripped from the 2013 NDAA during the conference process.

At the time, some opponents of the amendment were under the impression that it would extend due-process protections to U.S. citizens apprehended outside of the United States, but that is undeniably false.

The Due Process Guarantee Amendment applies only to U.S. citizens and lawful permanent residents who are apprehended on U.S. soil.

It has been four years since that misunderstanding prevented Congress from passing this commonsense reform. That is more than enough time for this institution to gain clarity on what this amendment does and does not do.

It’s time we finally pass this amendment, so that it can be signed into law.

I yield the floor.