I would like to speak for a few minutes about a bipartisan amendment I have offered to the NDAA, the Due Process Guarantee Act.
Alexander Hamilton, writing in Federalist 84, called arbitrary imprisonment one of the “favorite and most formidable instruments” of tyrants.
The Constitution includes safeguards against this form of tyranny, including the right of habeas corpus and the guarantee that American citizens will not be “deprived of life, liberty, or property” by the government “without due process of law.”
Our commitment to these rights is tested in times of crisis. We have not always passed these tests.
During the Second World War, President Franklin Roosevelt unilaterally authorized the internment of over 100,000 Japanese-Americans for fear they would spy against the United States.
The government presented no evidence that these Americans posed a threat to their country, because the government had no evidence. Most of the detainees were native-born citizens. Many had never visited Japan before in their lives.
That episode in our nation’s history is sadly personal to the state I represent. The U.S. government unjustly detained thousands of Japanese-Americans in Utah, at the Topaz War Relocation Center.
Japanese-American internment is the most dramatic and shameful instance of detention in our nation’s history, but it is far from the only instance.
In 1950, in a climate of intense fear about Communist infiltration of the government, Congress enacted the McCarran Internal Security Act over the veto of President Harry Truman. That law contained an emergency provision allowing the president to detain any person he thought might spy on the United States.
And more recently, in the post-9/11 era there has been renewed pressure to diminish our constitutional protections in the name of security. Lawmakers from both parties have authorized the detention of Americans suspected of terrorism without charge, without trial, and without meeting the evidentiary standard required for every other crime—potentially for life.
In the National Defense Authorization Act that President Obama signed into law in 2012, Congress authorized the indefinite military detention of suspected terrorists—including Americans arrested on American soil.
These episodes—Japanese-American internment, the McCarran Internal Security Act, and the 2012 NDAA—are “teachable moments,” if you will.
In all three cases, the United States faced real threats from totalitarian foes—foes hostile to our core values as a nation.
But instead of defying our foes by holding fast to our core values, we jettisoned them in a panic. Fear and secrecy won out. The Constitution lost.
Thankfully, that is not the whole story.
For there have also been times when Americans have stood up for the Constitution in the face of threats—thus sending a strong message to the totalitarian forces arrayed against us.
For instance, in 1971 Congress passed the Non-Detention Act, stating that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”
Congress can make another stand for the Constitution by allowing a vote on the Due Process Guarantee Act by correcting the mistake it made in 2012, and protecting Americans from indefinite detention by the government.
What is the Due Process Guarantee Act? In short, the amendment would raise the bar the government has to clear in order to indefinitely detain American citizens and lawful permanent residents apprehended on U.S. soil.
It would forbid the government from justifying such detentions using general authorizations of military force, such as the 2001 AUMF against the 9/11 plotters.
Instead, the government would have to obtain explicit, written authorization before detaining Americans without charge, if they are captured in the United States.
The Due Process Guarantee Act is based on a simple premise: If the government wants to take the extraordinary step of apprehending Americans on U.S. soil without charge or trial, it should get extraordinary permission from Congress.
And if my colleagues want to grant the government this power over their constituents, they should authorize it themselves. They shouldn’t hide behind vague authorizations so the voting public doesn’t know what they are doing.
I am offering this amendment because of my faith in our law enforcement officers and judges, who have successfully apprehended and prosecuted hundreds of homegrown terrorists. Their example proves that our security is not dependent on a supercharged government and weakened Constitution.
We can secure the homeland without using the “formidable instruments” of tyrants.
Thank you, Mr. President.
As prepared for delivery