Today, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, spoke out against the Conference Report to accompany H.R. 1540, the National Defense Authorization Act for FY 2012, because it fails to protect due process rights for the accused, expands the scope of the war on terror beyond those responsible for the 9/11 attacks, and allows for the Executive Branch to put Americans in jail, indefinitely, without a trial.

“In the last 10 years, we have begun to let go of our freedoms, bit by bit, with each new executive order, court decision, and – yes – act of Congress,” said Nadler.  “We have begun giving away our rights to privacy, our right to our day in court when the government harms us, and, with this legislation, we are continuing down the path of destroying the right to be free from imprisonment without due process of law.”

The following is the text of Nadler’s remarks on the House floor, as prepared:

“Mr.  Speaker, it has been a decade since the attacks of September 11, 2001. 

“As a nation, no matter what adversity we’ve faced, we have done so as Americans.  We have united behind the values that gave birth to this nation and that have made it a moral force in the world.  More than our military or economic strength, it has been the strength of our values and our example that has made us the world leader we are today.

“We are in danger of losing that most precious heritage, not because a band of murderous thugs threatens our freedom, but because we are at risk of forgetting who we are and what makes the United States a truly great nation.

“In the last 10 years, we have begun to let go of our freedoms, bit by bit, with each new executive order, court decision, and – yes – act of Congress.  We have begun giving away our rights to privacy, our right to our day in court when the government harms us, and, with this legislation, we are continuing down the path of destroying the right to be free from imprisonment without due process of law.

“The changes in this bill to the law of detention have major implications for our fundamental rights.  We should not be considering this as a rider to the Defense Authorization bill.  This should be the subject of close scrutiny by the Judiciary Committee.  The complex legal and constitutional issues should be properly analyzed, and the implications for our values carefully considered.
           
“You will hear that some of what is in this bill is already the law.  That may be, although many legal scholars tell us that it goes a great deal further than what the law allows now.

“You will hear that it really won’t affect U.S. citizens, although, again, there is credible legal authority that tells us just the opposite.

“You will hear that it doesn’t really turn the military into a domestic police force, but that clearly isn’t the case.

“Most of all, you will hear that we must do this to be safe, when the opposite is true.  The truth that the founders understood is that a people who will willingly sacrifice their core liberties – as this bill does – are already lost.  We can never be safe without our liberties, and this bill continues the decade-long campaign to destroy those liberties.

“This bill goes far beyond the Authorization for the Use of Military Force.  That resolution authorized ‘all necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.’

“This bill is not limited to those responsible for the September 11th attacks, and those who aided or harbored them.  It includes anyone who ‘substantially supported’ al-Qaeda and the Taliban or ‘associated forces that are engaged in hostilities against the United States or its coalition partners.’  It is not clear what is meant by ‘substantially supported,’ or what it takes to be ‘associated’ with someone who ‘substantially supported’ them.  It refers to any ‘belligerent act’ or to someone who has ‘directly supported such hostilities in aid of such enemy forces.’  It doesn’t, as does our criminal law, say ‘material support,’ so we really don’t know whether that support could be merely a speech, or an article, or something else. 

“So let’s not pretend that this is just the same as the AUMF.  If it were, there would be no need to pass this law; we have it already.  Courts, in reading legislation, operate on the very sensible assumption that Congress doesn’t write surplus language, that it must have intended to do something.  Here it is pretty clear that we are expanding the reach of the AUMF beyond the 9/11 perpetrators and those who aided and harbored them. 

“Whoever it reaches, the government would have the authority to lock them up without trial until ‘the end of hostilities,’ which, given how broadly the AUMF has been used to justify actions far from Afghanistan, is an open-ended, world-wide war.  That might mean forever.

“And who will be taken out of the civilian justice system and imprisoned forever without a trial?  The bill says anyone who ‘is determined’ to be covered by the statute.  It doesn’t say ‘determined’ by whom, or what protections there are to ensure that an innocent person doesn’t disappear into a military prison.  

“Section 1022(c) simply requires the President to issue procedures ‘designating the persons authorized to make determinations . . . and the process by which such determinations are made.’   No requirement for review, no requirement for due process, nothing.  Only the President can sign a waiver, but a perhaps low-level functionary may decide who is detained by the military forever.

“That’s not America.

“We also need to be clear that the so-called ‘Feinstein amendment’ does not really provide the protection the sponsor intended to provide.

“It says that ‘nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.’

“So, what are ‘existing law and authorities?’  As former FBI Director William Sessions has recently written ‘the provision does not limit such detention authority to people captured on the battlefield …. The reality is that current law on the scope of such executive authority is unsettled.’

“Director Sessions goes on to point out that in the two cases where the Supreme Court might have decided the question of detaining a U.S. citizen or a legal permanent resident, the U.S. claimed that the President had the authority to detain a suspected terrorist captured within the United States indefinitely without charge or trial.  In both these cases, Padilla and al-Mari, the government changed course and decided to try them in civilian courts in order to avoid a court ruling on the question.

“So, when the Feinstein amendment references ‘existing law’ you should not assume that means that current law clearly deprives the President of this dangerous power.  I hope it does, but it is still, legally, an open question.  We should ensure that our liberty is protected and not leave that question to some future court.

“If the Senate had wanted to make clear that a U.S. citizen could not be detained forever without charge, it could have said so unambiguously, but it did not.  At best, we are shooting dice with our liberties and hoping that a federal court, down the line, will rule that it really does mean what the sponsors of this bill say it means.

“We must take great care.  Our liberties are too precious to be cast aside in times of peril and fear.  We have the tools to deal with those who would attack us.  We do not need to do this.  We should not do this.

“And, because of this momentous challenge to the founding principles of the United States – that no person may be deprived of his liberty without due process of law – this bill must be rejected.”

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