Today, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, voiced his opposition to the Conference Report on H.R. 4310, the National Defense Authorization Act for Fiscal Year 2013, because of its provisions allowing for the continued indefinite detention of prisoners without trial.

“In the last decade, 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 language in this bill concerning the law of detention has major implications for our fundamental rights that should be considered on their own, not as part of a Defense Authorization bill.”

Below is the full text of Nadler’s statement on the House floor, as prepared:

“Mr. Speaker, I rise in opposition to this Conference Report, as I believe it still falls short of where we need to be on the question of detention without trial.  Nonetheless, I do want to commend the Gentleman from Washington for his conscientious work on this legislation.

“As a nation, no matter what adversity we’ve faced, we have done so as Americans.  We have united behind the values and freedoms 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 decade, we have begun to let go of our freedoms, bit by bit, with each new executive order, each new court decision, and – yes – each new 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 language in this bill concerning the law of detention has major implications for our fundamental rights that should be considered on their own, not as part of a 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.  I regret that the leadership of the Judiciary Committee has not seen fit to conduct the kind of inquiries this important topic deserves.    

“The Conference Report states that ‘[n]othing in the Authorization for Use of Military Force . . . .  or the National Defense Authorization Act for Fiscal Year 2012 . . . .  shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.’

“This language simply continues the flawed policies established in the 2011 Defense Authorization Bill.  First, it applies only to ‘any person inside the United States.’  That is important, but most of the debate on indefinite detention without charge, and on the lack of due process, has to do with people held by our government outside our borders – including, potentially, U.S. citizens. 

“Our conduct to this point has been a stain on our national honor.  The language in this bill, combined with the prohibitions against moving these detainees into the United States, guarantees that we will continue holding people indefinitely without charge – contrary to our traditions of due process and civil rights.

“Second, this text continues the claimed authority of the United States government to hold even U.S. persons captured on United States soil indefinitely and without charge.  Some people take comfort in the provision that states that those of us entitled to certain rights prior to the passage of the AUMF and of last year’s Defense Authorization bill continue to have the same rights afterwards. 

“But this bill does not say who among us are fortunate enough to have those rights, nor does it tell us what those rights might be.  It does not specify how the Executive Branch is to determine which of us are entitled to these constitutional protections and which of us are not.  And it does not provide us with recourse if the President gets it wrong.

“Maybe silence on these issues is the best that we could have hoped from this Congress; but these are real problems, that we should not sweep under the rug.

“Although I am urging a no vote on this conference report, I do want to acknowledge that, despite these very real problems, there are things in this bill that are important and that deserve every member’s support. 

“For example, Senator Shaheen’s amendment to allow service members and their dependents to obtain abortions in military hospitals in cases of rape and incest rights a terrible wrong. 

“But 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 surrender our liberty.

“Because of this momentous challenge to the founding principles of the United States – that no person may be deprived of liberty without due process of law – this bill should be rejected.”

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