Text: S.Hrg. 112-383 — THE DUE PROCESS GUARANTEE ACT: BANNING INDEFINITE DETENTION OF AMERICANS
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[Senate Hearing 112-383]
[From the U.S. Government Publishing Office]
S. Hrg. 112-383
THE DUE PROCESS GUARANTEE ACT: BANNING INDEFINITE DETENTION OF
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FEBRUARY 29, 2012
Serial No. J-112-61
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
prepared statement........................................... 61
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
prepared statement........................................... 79
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 90
Bannai, Lorraine, Professor of Legal Skills, and Director, Fred
T. Korematsu Center for Law and Equality, Seattle University
School of Law, Seattle, Washington............................. 13
Bradbury, Steven G., former Acting Assistant Attorney General,
Principal Deputy for the Office of Legal Counsel, U.S.
Department of Justice, Washington, DC.......................... 16
Garamendi, Hon. John, a Representative in Congress from the State
of California.................................................. 9
Landry, Hon. Jeff, a Representative in Congress from the State of
Vladeck, Stephen I., Professor of Law and Associate Dean for
Scholarship, American University Washington, College of Law,
Washington, DC................................................. 14
QUESTIONS AND ANSWERS
Responses of Lorraine K. Bannai to questions submitted by
Senators Klobuchar and Coons................................... 31
Responses of Steven Bradbury to questions submitted by Senator
Responses of Stephen I. Vladeck to questions submitted by
Senators Klobuchar and Coons................................... 48
SUBMISSIONS FOR THE RECORD
Allen, Scott, MD, Associate Professor of Medicine, University of
California, Riverside, Medical Advisor, Physicians for Human
Rights, Washington, DC, statement.............................. 54
Bradbury, Steven G., former Acting Assistant Attorney General,
Principal Deputy for the Office of Legal Counsel, U.S.
Department of Justice, Washington, DC:
Senator Leahy, March 1, 2012, letter......................... 57
Senator Franken, March 16, 2012, letter...................... 58
Franken, Hon. Al, a U.S. Senator from the State of Minnesota:
Department of Justice, Washington, DC, OPR Report (*Entire
report could not be printed due to the voluminous nature,
additional material is being retained in the Committee
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa:
OPR Report (*Entire report could not be printed due to the
voluminous nature, additional material is being retained in
the Committee files.)...................................... 82
Korematsu, Karen, Co-Founder, Fred T. Korematsu Institute for
Civil Rights and Education, Daughter of Fred T. Korematsu,
Mukasey, Michael B., Attorney General and Mark Filip, Deputy
Attorney General, Washington, DC, January 19, 2009, joint
Margolis, David, Associate Deputy Attorney General, Department of
Justice, Washington, DC, memorandum............................ 100
New York Times, February 21, 2012, articles...................... 106
Physicans for Human Rights (PHR), Washington, DC, report......... 107
THE DUE PROCESS GUARANTEE ACT: BANNING INDEFINITE DETENTION OF
WEDNESDAY, FEBRUARY 29, 2012
Committee on the Judiciary,
The Committee met, Pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Klobuchar, Franken,
Grassley, Graham, and Lee.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. We have Senator Grassley, of
course, here. Senator Feinstein, whose bill this is, is here. I
see Senator Klobuchar here and Senator Franken, and, Senator
Klobuchar, I understand you have another meeting, but you will
be submitting questions for the record?
Senator Klobuchar. That is right, Mr. Chairman. Thank you,
and I am a cosponsor of Senator Feinstein's bill.
Chairman Leahy. And without objection, your questions will
be accepted for the record.
Last December, Congress enacted the National Defense
Authorization Act--NDAA--for Fiscal Year 2012. The bill
contained what to me are deeply troubling provisions related to
indefinite detention. I viewed them as inconsistent with our
Nation's fundamental commitment to protect liberty. I opposed
and will continue to oppose indefinite detention. I fought
against the Bush administration policies that led to the
current situation, with indefinite detention being the de facto
policy. I opposed President Obama's Executive order in March
2011 that contemplated indefinite detention. I opposed the
provisions in the NDAA as well.
The American justice system is the envy of the world. A
regime of indefinite detention degrades the credibility of our
great Nation around the globe, particularly when we criticize
other governments for engaging in such conduct. Indefinite
detention contradicts the most basic principles of law that I
have pledged to uphold since my years as a prosecutor and in
our senatorial oath to defend the Constitution. That is why I
am fundamentally opposed to indefinite detention without charge
During the Senate debate last year over the detention
provisions in the NDAA, some Senators argued in favor of
indefinite detention, including for individuals apprehended
within the United States. I think this violates core
constitutional principles of our country. That is why I
repeatedly raised concerns and opposed the detention provisions
in the NDAA. I was disappointed that the Senate rejected
several efforts to amend or remove these measures as we debated
One of the amendments that did pass during the NDAA debate
was offered by Senator Feinstein. Her amendment clarifies that
nothing in the NDAA changed the status quo with regard to the
authority of the Government to indefinitely detain U.S.
citizens or others arrested within the United States. I thank
her for her efforts, including her work on this hearing today,
because this hearing follows the work of Senator Feinstein. In
fact, after her opening statement, I intend to turn the gavel
over to her.
There is significant disagreement over the Government's
authority to indefinitely detain Americans and others arrested
on American soil. I firmly believe that the Constitution makes
such actions unconstitutional. In the 2004 Supreme Court
opinion in Hamdi v. Rumsfeld, Justice O'Connor stated
unequivocally: ``We have long since made clear that a state of
war is not a blank check for the President when it comes to the
rights of the Nation's citizens.'' The power of our Federal
Government is, after all, bound by the Constitution.
Immediately following enactment of the NDAA last December,
Senator Feinstein continued her efforts and introduced the Due
Process Guarantee Act, which is the subject of our Judiciary
Committee hearing this morning. I understand that Senator
Feinstein had to moderate the bill in garnering bipartisan
support. She is a superb legislator, and that is what one does
to get that kind of support. And I greatly appreciate her
continuing efforts to correct the excesses enacted in the NDAA
and have joined to cosponsor her bill.
The Due Process Guarantee Act would make clear that neither
an authorization to use military force nor a declaration of war
confer unfettered authority to the executive branch. This is
not unlike the resolution I introduced in 2006 to clarify that
the Authorization for the Use of Military Force adopted after
9/11 did not authorize warrantless domestic surveillance. I
hope that the Due Process Guarantee Act will serve to open a
discussion about how to ensure that no individual arrested
within the United States will be detained indefinitely. I
believe our Constitution requires no less. The case of American
citizens, of course, is the most striking, but to me the
Constitution creates the framework that imposes important legal
limits on the Government and provides that all people have
I am particularly pleased to welcome on behalf of the
Committee Professor Lorraine Bannai, who was part of the legal
team that helped overturn the unjust conviction of Fred
Korematsu. Seventy years ago this month, President Roosevelt
signed the Executive order that authorized the detention of
thousands of Japanese Americans during World War II, including
Fred Korematsu, as well as Professor Bannai's parents and
grandparents. That was a tragic chapter in our Nation's history
for which those of us now in Congress have apologized and
sought to provide some redress.
So I urge all Senators to join us in upholding the
principles of our Constitution, protecting American values, and
championing the rule of law. We need a bipartisan effort to
guarantee that those arrested on American soil are not locked
away indefinitely without charge or judicial review, and so
that the United States remains the model for the rule of law to
I yield first to Senator Grassley, as is our custom, and
then to Senator Feinstein, who will take over as Chair of the
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
Senator Grassley. Thank you very much for holding this
hearing. This hearing continues lengthy debates that have
occurred this past December and years before, but specifically
in December with the National Defense Authorization Act for
Fiscal Year 2012. Specifically, we will focus on the provisions
related to the procedure for capturing, detaining, and
adjudicating al Qaeda terrorists and other persons associated
with al Qaeda.
These provisions have reopened an ongoing debate about the
role and the powers of the President, Congress, and the courts
in protecting national security. This debate has been ongoing
since the founding of our Nation, but more recently since the
terrorist attacks of 9/11. Whichever point of view one takes,
this topic is bound to raise concerns for those on either side
of the issue. So an open and transparent debate is warranted,
and this hearing is part of that process.
We can agree that all branches of Government believe that
American citizens should be afforded due process of law, and
the express language of the NDAA, which includes the Feinstein
amendment, means that U.S. citizens are expressly outside the
scope of the NDAA mandatory military detention provisions. And
only twice has the President chosen to put a citizen in
military detention. Both times, at the end of the day, those
individuals were transferred to civilian custody and charged
with Federal crimes. However, for argument's sake, even if the
President were to try to indefinitely detain an American
citizen under military authority, that decision could be
immediately challenged via a writ of habeas corpus in the
Federal courts as outlined by Supreme Court precedent.
I would also note that late last night President Obama
issued the procedures implementing mandatory military detention
provisions of the NDAA. These procedures make clear that the
NDAA expressly exempts U.S. citizens from mandatory military
detention, but they also make it so procedurally difficult that
effectively no individual of any nationality will likely ever
be transferred to mandatory military custody under Section
2011. Between the bureaucratic requirements and the seven
national security waivers, it is clear the provision will be
seldom, if ever, used on anyone, let alone a United States
Much of the precedent on this matter dates back to the
World War II case concerning a U.S. citizen who was among eight
Nazi soldiers that landed on the beach of New Jersey with a
goal of sabotaging American interests. These individuals,
including the American citizen, were tried by President
Roosevelt's administration in a military commission and
sentenced to death. On appeal to the Supreme Court, the Court
held that enemy belligerents, including the American citizens,
were tried in a proper venue--a military commission--and upheld
In 2004, the Supreme Court, by a vote of 6-3, found that an
American citizens named Hamdi, captured on the battlefield in
Afghanistan and detained in the U.S., had a right to petition
for a writ of habeas corpus to challenge detention. But a
plurality of the Court, in an opinion by Justice O'Connor, also
held that the President had the authority to detain Hamdi
because Congress had passed an Authorization for the Use of
Military Force following the 9/11 attacks.
And the Hamdi plurality recognized that detention for the
duration of the conflict was part of the ``longstanding law of
war principles.'' Justice O'Connor's opinion also made no
distinction based upon an individual citizen's finding that,
``There is no bar to this Nation holding one of its own
citizens as an enemy combatant.''
Two more recent lower court cases, Padilla and al-Marri,
have added to the law regarding when a citizen or legal
permanent resident can be detained, but neither case has
reached the Supreme Court on the merits. But in Hamdi and
Padilla, the Supreme Court said that an American citizen in
military custody in the United States has a right to challenge
his detention via a writ of habeas corpus. So this begs the
question: Why is this legislation even necessary?
And there are two extremely serious practical questions for
us to discuss. First, what would be the state of law on
detention of American citizens and lawful permanent residents--
even if captured abroad on a foreign battlefield--if this bill
became law? And, second, would passage of this bill increase
the chances that this country would be victimized by another
Justice Jackson, who dissented in Korematsu, because the
military sought ``to make an otherwise innocent act a crime''
for racial reasons, developed a famous analysis of Presidential
power in the Youngstown Steel seizure case. ``When the
President acts pursuant to an express or implied authorization
of Congress, his authority is at its maximum, for it includes
all that he possesses in his own right plus all that Congress
can delegate.'' After the Authorization for Use of Military
Force and Hamdi, it is clear that President Bush and President
Obama have been able to pursue terrorists under this first and
highest level of Presidential power, namely, in concert with
Were Congress to require Congressional action beyond the
use of military force legislation that the Supreme Court has
already said authorizes detention of American citizens in
America, the President would immediately be able to detain
Americans only under the second category of Presidential power
that Justice Jackson outlined.
Under this bill, we would be, as Justice Jackson put it, in
a twilight zone of uncertainty as to the scope of Presidential
power. That raises enormous practical questions, especially
since the withdrawal of affirmative Congressional authorization
would be retroactive. And in any future conflict, if Congress
remains silent, we would fight a war with the scope of
Presidential power to detain citizens uncertain, with the
result dependent ``on the imperatives of events and
contemporary imponderables, rather than on abstract theories of
A second practical question flows from the first. We have
been very fortunate since September 11th not to have had any
major terrorist attacks on American soil, although there were
some close calls. The ability of the President to use the
powers Congress has given him, with appropriate oversight, in
addition to Congress' own powers, has been responsible for this
excellent outcome since 9/11. Were we to take one of the
President's clear powers and banish it to a twilight zone, it
is not clear that the President will be able to continue to
take the necessary actions that have prevented subsequent
terrorist attacks. We should exercise exceptional caution
before taking such a step.
Unfortunately, we do not have a representative of the
administration present to discuss these issues today. I made a
request to the Justice Department offering them an opportunity
to testify at today's hearing, but they were unable to
accommodate. This bill presents serious constitutional
separation of powers issues, and it would be in our best
interest to hear directly from the administration, especially
in light of the fact that President Obama issued a signing
statement on the provisions we are discussing. At the least, we
need to hear the views of the Departments of Justice, Defense,
and State regarding the impact of this.
I will put the rest of the statement in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Leahy. Thank you. And I would note for the record
that the Justice Department did brief your staff, my staff, and
any members who wanted last night on the new procedures.
Senator Grassley. But wouldn't it be better if--well, that
Chairman Leahy. Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. Let
me thank you for holding the hearing and for cosponsorship of
I would also like to thank Senator Lee. I am delighted that
he is here today, a major Republican cosponsor and a member of
this Committee. And if you wish to make a brief statement while
I am presiding before we go to the witnesses--well, if you
change your mind, let me know.
I would also like to thank Senators Durbin, Klobuchar,
Franken--who is here as well--Coons, and Blumenthal, who are
members of this Committee and six of the 23 cosponsors of this
bipartisan legislation. And I also want to thank the witnesses
for being here today as well.
Let me take a moment to describe why this is such an
important issue for me. I was very young during World War II,
and one Sunday--my Dad was a doctor, and the only time I really
saw very much of him was on Sunday. He said, ``I want to show
you something.'' And he took me down the peninsula south of San
Francisco to a racetrack known as Tanforan. And it had been
converted into an interment camp and processing center for
Japanese Americans who on a certain day were told throughout
the United States to report to be held in confinement--for no
reason other than we were at war with Japan.
And so every Japanese American citizen essentially was
interned, and Tanforan was a transition camp. I will never
forget seeing the infield of the racetrack all filled with
little tiny shacks, the barbed wire around the exterior. And I
think I did not really realize the impact of that until many
years later, and it remains, in my view, a dark stain on our
history and our values and also something we should never
It took a long time, but in 1971, Congress passed and
President Nixon signed into law something called the ``Non-
Detention Act of 1971,'' and subsequently Ronald Reagan made an
official apology when he was President of the United States.
The Non-Detention Act clearly states this, and I quote--it is
very brief: ``No citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of
Now, what happened was in the Armed Services Committee an
amendment was put in the defense authorization bill which
essentially used the resolution to authorize force to apply the
laws of war also to the United States. And in the laws of war,
a suspect on the battlefield can be held, detained, without
charge until the end of hostilities. This had never been the
case in the United States. So on the floor that day, there was
considerable debate. The Judiciary staff, Senator Lee, Senator
Paul, we spent a lot of time discussing this. The Intelligence
staff came down, and there was a very, very good discussion on
what was meant and what was not meant--I think we spent,
Senator Lee, virtually the whole day on it. I remember being in
the Republican cloakroom sitting with you and Senator Paul and
trying to work this out.
Others on the floor, including myself and Senator Durbin,
argued that this was prohibited by the Non-Detention Act and
that the Hamdi decision by the Supreme Court was by its own
terms limited to the circumstances of an American picked up on
the battlefield in Afghanistan. The four-Justice plurality in
Hamdi clearly stated, and I quote: ``[The Government] has made
clear, however, that, for purposes of this case, the `enemy
combatant' that it is seeking to detain is an individual who,
it alleges, was `part of or supporting forces hostile to the
United States or coalition partners' in Afghanistan and who
`engaged in an armed conflict against the United States' there.
We therefore answer only the narrow question before us: whether
the detention of citizens falling within that definition is
So Hamdi in itself was very narrow and really related to
the battlefield in Afghanistan only.
In the end, as the Chairman said, the Senate adopted a
compromise that was worked out with Senators Graham, Durbin,
Levin, McCain, Chambliss, and others, which passed by a 99-1
vote. I do not think any one of us thought that was really the
solution. On that given day, it was the best we could do. And
it provided that the defense authorization bill did not change
current law. In effect, what this did was leave it up to the
courts to resolve at a later time.
There was widespread outrage at the notion that the defense
authorization bill or the AUMF would authorize the military to
indefinitely detain U.S. citizens without charge or trial. I
believe that message clearly got out there and was reflected in
the number of calls and letters that came in.
So the time is really now to end the legal ambiguity and
state clearly once and for all that the AUMF or other
authorities do not authorize such indefinite detention of
Americans in America.
To accomplish this, a number of us joined to introduce the
bill we are considering today, the Due Process Guarantee Act.
This picks up right where the Non-Detention Act of 1971 leaves
off. It amends that Act to provide clearly that no military
authorization will allow for the indefinite detention of United
States citizens or green card holders who are apprehended
inside the United States. It does not change current law for
terrorist detainees captured outside the United States.
The bill also codifies a clear-statement rule that requires
any Congress in the future to expressly state when it wants to
put United States citizens and green card holders into an
indefinite detention; in other words, they have to explicitly
authorize that. We lack the power to pass a statute that would
prevent future Congresses from passing a statute to authorize
such detention, although the Constitution may well prohibit it.
However, we can at least provide that if a future Congress
decides to take such action to override the protection of the
Non-Detention Act, it must say so clearly and explicitly that
Congress wants to authorize indefinite detention of United
As I understand it, under the Supreme Court precedent of
Yick Wo v. Hopkins in 1886 and other cases, individuals
residing in the United States, both legally and illegally, have
the same due process protections as citizens under the
Constitution. Therefore, some argue that this legislation
should provide coterminous protection to all persons in the
United States whether lawfully or unlawfully present. But,
candidly, the question is whether we can pass such a bill to
cover others besides United States citizens and green card
holders. If there would be, I am all for it. We have explored
this with our Republican cosponsors, and at the present time we
do not believe there is support to go beyond this.
So whenever we draw the line or wherever we draw the line
on who should be covered by the legislation, it is unclear to
me why anyone apprehended on United States soil should be
detained by the military. The criminal justice system has at
least the follows four options at its disposal to detain
suspected terrorists who may be in the United States legally:
one, they can be charged with a crime and held; two, they can
be held for violating immigration laws; three, they can be held
as material witnesses as part of Federal grand jury
proceedings; and, four, they can be held under the PATRIOT Act
for 6 months at a time.
As we know, the Bush administration tried to expand the
circumstances under which United States citizens could be held
in indefinite detention. United States citizen Jose Padilla was
detained without charge in a military prison for 3 years, even
though he was arrested inside the United States. Amid
considerable controversy regarding the legality of his
detention, Padilla was ultimately transferred out of military
custody and tried and convicted in a civilian Federal court.
I very much agree with the Second Circuit Court of Appeals
which ordered Padilla to be released in the case of Padilla v.
Rumsfeld 2003 and held. And here is the quote: ``We conclude
that clear Congressional authorization is required for
detentions of American citizens on American soil because 18
U.S.C. 4001(a), the Non-Detention Act, prohibits such
detentions absent specific Congressional authorization.''
The Second Circuit went on to say that the 2001
Authorization to Use Military Force passed after 9/11 ``is not
such an authorization and no exception to the Non-Detention Act
otherwise exists.'' That is the Second Circuit.
The Fourth Circuit came to a different conclusion--and I
think all of this is important or I would not bother with it--
when it took up Padilla's case, but its analysis turned
entirely on disputed claims that ``Padilla associated with
forces hostile to the U.S. Government in Afghanistan.'' And
``like Hamdi''--and this is a quote--``Padilla took up arms
against United States forces in that country in the same way
and to the extent as did Hamdi.''
The Due Process Guarantee Act would help resolve this
apparent dispute between the circuits and adopt the Second
Circuit's clear-statement rule. The bill states, ``An
authorization to use military force, a declaration of war, or
any similar authority shall not authorize the detention without
charge or trial of a citizen or lawful permanent resident of
the United States apprehended in the United States unless an
Act of Congress expressly authorizes such detention.'' That is
the clear-statement rule that this bill will enact into law.
I want to be very clear about what this bill is and what it
is not about. It is not about whether citizens such as Hamdi
and Padilla or others who would do us harm should be captured,
interrogated, incarcerated, and severely punished. They should
be. But what about an innocent American like Fred Korematsu or
other Japanese Americans during World War II? What about
someone in the wrong place at the wrong time that gets picked
up, held without charge or trial until the end of hostilities?
And who knows when these hostilities end?
The Federal Government experimented with indefinite
detention of United States citizens during World War II--a
mistake that we now recognize as a betrayal of our core values.
Experiences over the last decade prove the country is safer now
than before the 9/11 attacks. Terrorists are behind bars.
Dangerous plots have been thwarted. In the worldwide threat
hearing, FBI Director Mueller testified that there have been 20
arrests just this past year of people who would do harm in the
United States. The system is working.
Now is the time to clarify United States law to state
unequivocally that the Government cannot indefinitely detain
American citizens and green card holders captured inside this
country without trial or charge.
I am sorry this is so long, Mr. Chairman, but I thought it
was really important to point out what this is and what it is
Chairman Leahy. I agree, and I thank you and Senator Lee
and others who have supported this. And I will now give you the
Senator Feinstein. [Presiding.] Thank you. Thank you very
And now, if I may, it is a great pleasure for me to
introduce the two Members of Congress who are here today, and I
am very grateful to them for being willing to come over to this
body and give us their testimony.
I will begin with a friend and colleague from California,
Congressman John Garamendi. He has represented California's
10th District since November of 2009. He previously served as
Lieutenant Governor of California and in the California
Legislature, also as insurance commissioner of the State, which
was when I first met him. On December 16, 2011, he introduced
the companion version of the Due Process Guarantee Act in the
House of Representatives.
I will also introduce at this time, if I may,
Representative Jeff Landry. He was elected in 2010 to represent
Louisiana's 3rd District. Representative Landry is a veteran of
Operation Desert Storm and has also served as a sheriff's
deputy and police officer in Louisiana. On December 15, 2011,
he introduced legislation in the House of Representatives to
ensure that United States citizens could not be detained
indefinitely, with all the rights of due process afforded to
I am grateful to you both, and, Congressman Garamendi, if
you would begin.
STATEMENT OF HON. JOHN GARAMENDI, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Representative Garamendi. Thank you very much, Senator
Senator Feinstein. I would ask you, if you can--I know this
is difficult. Clearly, I could not--to confine your remarks to
as close to 5 minutes as you can. If you cannot, that is all
Representative Garamendi. I intend to do so, and we were
instructed earlier to accomplish that. But I thank you very
much, and Senator Grassley and other members of the Committee,
for the pleasure as well as the honor of being here. I really
appreciated your testimony and your statement, Senator
Feinstein. It laid out the problem very, very clearly, and your
leadership on this is much appreciated, certainly by me and I
think by most Americans.
The Due Process Guarantee Act both on the Senate and the
House side provides clarity in an area where Congress and the
American people cannot afford to have ambiguity. Congress as
the maker of this Nation's laws must always tread carefully
when the fundamental rights enshrined in our Constitution are
at issue, and we must leave no uncertainty when it comes to the
rights of the American people. We must clarify the existing law
to guarantee that due process rights for every American are
protected. It is a foundational principle of our great Nation
that we are all innocent until proven guilty and that we
deserve a fair trial.
The fiscal year 2012 National Defense Authorization Act
came too close to infringing on those rights. It is certainly
not a perfect piece of legislation, but it was a must-pass and
provided the tools that our military needs to get the job done.
There is much that was necessary in the NDAA: pay increases for
our troops, TRICARE, as well as the necessary authorization for
Now, more than a decade has passed from that horrible event
of September 11. Terrorists are behind bars and dangerous plots
have been thwarted. The world knows that America will no longer
tolerate safe havens for al Qaeda or any other terrorist group,
and we do not need to sacrifice our civil liberties and subvert
our Constitution for that security.
Unfortunately, the NDAA came too close to doing just that.
Before and after the passage of the Defense Authorization Act,
there was concern among Members of Congress and people from all
walks of life, including the military, the law enforcement
community, and others, that the language in the bill left open
the possibility that U.S. citizens and legal permanent
residents could be indefinitely detained without charge or
trial. President Obama, the Secretary of Defense, Directors of
the CIA and FBI, along with the Chairman, who leads the Senate
Intelligence Committee--I think she is here at the moment--all
oppose the indefinite detention. Those who receive the most up-
to-date information on intelligence sit at the highest levels
of Government, some of whom served both Democrats and
Republicans, all believed that we do not need this policy to
keep us safe.
President Obama was so concerned with the language in the
NDAA that he wrote a Presidential signing statement about the
detainee provisions, stating, ``I want to clarify that my
administration will not authorize the indefinite military
detention without trial of American citizens. Indeed, I believe
doing so would break with our most important traditions and
values as a Nation. My administration will interpret Section
1021 in a manner that ensures that any detention it authorizes
complies with the Constitution, the laws of wars, and other
We just heard a furtherance of that earlier in the
testimony before this Committee and the statement from the
While I take President Obama at his word, subsequent
administrations will not be bound by this signing statement.
The law itself must be absolutely clear, and that is why I
chose to introduce the detention act in the House. This bill
states unequivocally that the United States cannot indefinitely
detain American citizens. It amends the Non-Detention Act of
1971, as does yours, Senator Feinstein, by providing
Congressional authorization to use force that does not
authorize indefinite detention without trial or charge of a
U.S. citizen or permanent legal resident who are apprehended
In addition to the authorization to use force, the bill
also states that a declaration of war or similar act by the
Executive or Congress does not abridge this right.
The bill codifies the clear-statement rules and requires
the Congress to expressly authorize detention authority when it
comes to U.S. citizens or lawful residents. Hopefully that will
I will let it go at that, Senator. I do want to thank you
and the members of this Committee, and particularly your
leadership, Senator Feinstein, on this issue. When I heard of
your leadership, I said, ``Let us do it in the House,'' and it
turns out that we are doing it bipartisan. Sixty-two Members of
the House, Democrat and Republican, have signed on to my bill,
and you will hear Mr. Landry I think with the exact same number
on his side. We need to solve this problem.
We thank you for your leadership.
Senator Feinstein. Thank you very much, Congressman
Congressman Landry, I would like to welcome you to this
side. It is great to have you here. Please proceed.
STATEMENT OF HON. JEFF LANDRY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF LOUISIANA
Representative Landry. Thank you, Senator. It is an honor.
And for those of you all if you have a problem understanding my
South Louisianan accent, Senator Lee said he would be sure to
give you a transcript.
Representative Landry. I appreciate this opportunity to
testify before you all today on an issue that I believe is of
the utmost importance to the American people, and that is,
their freedoms and liberties. And as I sit before you all
today, I would like you not to think of me as a Member of the
House of Representatives addressing the other body, but as an
American citizen petitioning his Congress to protect the very
foundation of our Constitution.
You see, when the Founders wrote our Constitution, they did
not do it for the betterment of a political party or a social
class or a particular group of people. They did it to enshrine
the very certain inalienable rights that no country at the time
nor even today confers upon its citizens.
They also understood that times would come and could arise
when those freedoms would be threatened, and so to address
these times, they bestowed upon Congress, and only Congress,
under times of extreme strife, the right to deny Americans the
very liberties the Constitution sought to protect. We must not
take this responsibility lightly nor abrogate this power to
another branch of Government. If Congress is suspending a writ
of habeas corpus, it should say so directly. If we are not,
then we should say so in clear and precise language.
The events of September 11, 2001, can be thought of as one
of those times of extreme strife. Yet for good or bad,
Congress' response took the form of past Congressional
precedent in enacting laws of great ambiguity, leaving the
Executive unfettered discretion.
As times have passed from that tragic date, we have had
shining moments of success, but we recognize that serious
threats still exist. We must, however, return to our citizens
some of the very liberties we seek to protect.
Last December, we conducted one of the healthiest and
meaningful debates heard in these halls in a long time. Without
concern for party, we deliberated what price Americans should
pay to protect our Nation. While this debate was meaningful, we
did not finish the job. We left ambiguity which, in my humble
opinion, could allow the President to indefinitely detain
Our constituents and our consciences demand more, and I for
one refuse to disappoint either. I have made it a top priority
to correct this and ensure that the law clearly states that the
NDAA shall not deny American citizens the right to an Article
III court, and I have introduced House Resolution 3676 to that
effect. This legislation, as Representative Garamendi just
mentioned, currently enjoys the support of 62 bipartisan
cosponsors. The fact that its sponsors hail from across the
political spectrum, from Tea Party freshmen to conservatorship
to members of the Democratic leadership and even progressives
such as Representative Dennis Kucinich, should demonstrate what
many have forgotten: that protecting Americans' rights is not
one party's responsibility, it is our responsibility.
I do not hold the patent to the solution. Representative
Garamendi has introduced legislation which is the counterpart
to Senator Feinstein's Due Process Guarantee Act, yet he is
fully supportive of my legislation as I am of his.
I have no pride of ownership on this issue. I came to
Congress to solve problems. So my only desire is to see that
this issue is put to rest once and for all.
If we do nothing more this year, let us show the American
people that when their liberty is at stake, those whom they
have entrusted to protect it will act to secure it.
Again, I thank the Committee for this opportunity and their
interest in this issue.
Senator Feinstein. Let me thank both of you very, very
much. I know you are busy, you have other things to do, so if
you wish, you can remain. If you would like to leave, that
would be fine. But I am really thankful to both of you for
doing what you are doing, and with 62 cosponsors on each, if
there is a way of putting them together and moving this thing
along, you know, I think we can all work together on this
issue, because I think the important thing is what you said,
Congressman Landry, that we maintain our core values.
So I very much appreciate it, and if you wish to be
excused, you certainly may be.
Representative Garamendi. Senator, thank you very much. I
do have to go. Please carry on your work to success. We will
try to do the same on our side, and I think Mr. Landry and I
will have one bill that we will be pushing forward on our side.
Senator Feinstein. Great. Thank you very much.
Representative Landry. Thank you, Senator. It is an honor.
Senator Feinstein. Now we will move on with the next panel.
Mr. Bradbury, welcome. You have gained a few gray hairs since I
last saw you. But you are very welcome. I want you to know
Lorraine Bannai is a professor of legal skills and director
of the Fred T. Korematsu Center for Law and Equality at the
Seattle University School of Law. Professor Bannai served on
the legal team that successfully overturned the conviction of
Fred Korematsu. Professor Bannai has spoken extensively on
Japanese American internment and Korematsu v. the United
I will just introduce the three of you at this time.
Stephen Vladeck is a professor law and associate dean for
scholarship at American University Washington College of Law.
Professor Vladeck's teaching and research has focused
extensively on Federal jurisdiction, constitutional law,
national security law, and international criminal law. He was
also part of the legal team that successfully challenged the
Bush administration's use of military tribunals at Guantanamo
Bay, Cuba, in the Supreme Court case Hamdan v. Rumsfeld.
Steven Bradbury was the Acting Assistant Attorney General
and Principal Deputy for the Office of Legal Counsel at the
United States Department of Justice during the Bush
administration. He served as the head of the Office of Legal
Counsel from 2005 to 2009. He has appeared before this
Committee, and I have had the pleasure as a member of the
Intelligence Committee--I guess several times you have appeared
there, and it is good to welcome you back, Mr. Bradbury, and we
look forward to your testimony as well.
So we will proceed, and why don't we begin, Ms. Bannai, or,
should I say, Professor Bannai, with you.
STATEMENT OF LORRAINE K. BANNAI, PROFESSOR OF LEGAL SKILLS, AND
DIRECTOR, FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY,
SEATTLE UNIVERSITY SCHOOL OF LAW, SEATTLE, WASHINGTON
Ms. Bannai. Thank you very much. Senator Feinstein, Ranking
Member Grassley, and members of the Committee, thank you so
much for allowing me to testify today.
As one of the attorneys who represented Fred Korematsu in
successfully reopening his 1944 Supreme Court case and as a
third-generation Japanese American whose family was
incarcerated in the Mojave Desert of California during World
War II, I appear before you to reflect on the important lessons
I hope this country has learned from that dark chapter in our
Nation's history. We know now what Japanese Americans always
knew: that their imprisonment was unlawful; that it was not
based on military necessity; and that it occurred because this
country chose to sacrifice fundamental rights characteristic of
a nation of laws even as it was fighting to preserve those
rights on the battlefield.
The lessons of the Japanese American incarceration are
many. First is the real, tangible meaning of due process.
During World War II, pursuant to military orders authorized by
the President, persons of Japanese ancestry--two-thirds of whom
were American citizens--were removed from their west coast
homes and imprisoned. There were no charges, there were no
hearings. They were rounded up because our country feared
attack, there were unfounded suspicions that some were spies,
and they looked like the enemy.
In the face of that fear, the rule of law was suspended. We
are now confronted with new fears against new peoples, and
while we do need to ferret out criminal conduct, we need to do
so in a way that preserves our system of laws.
Second, the Japanese American incarceration teaches us
about the danger of unfettered discretion. Seventy years ago
this month, President Roosevelt issued the military a blank
check, delegating to it the authority to take whatever actions
it wished against whomever it saw fit. Orders were issued
subjecting Japanese Americans to curfew and then removal. In
Hirabayashi v. United States and Korematsu v. United States,
the Supreme Court upheld those orders, deferring to the
military judgment that they were necessary.
Forty years later, Fred Korematsu and Gordon Hirabayashi
were exonerated on proof that the Government had withheld from
the court material evidence bearing on the issue of military
necessity. In essence, even as the military orders lacked
factual basis, Japanese Americans languished in camps, many for
over 3 years.
Finally, the World War II incarceration teaches us about
human frailty during times of crisis. Many who played a role
then later came to regret their decisions, among them Chief
Justice Earl Warren, who, as Attorney General of California,
vigorously sought the removal of Japanese Americans. He later
reflected, ``It was wrong to react so impulsively without
positive evidence of disloyalty, even though we felt we had a
good motive in the security of our State.'' We are thus warned
to safeguard constitutional protections, particularly in times
when fear and racism can infect responsible judgment.
The bill before you seeks to ensure that no citizen or
permanent resident shall be detained without charge or trial.
Our Constitution, as has been said, demands no less. I would
urge, however, that the guarantee of due process applies to all
persons. That guarantee, by its terms, states that ``no
person'' shall be deprived of due process, without distinction
among who it covers.
Further, the bill prohibits detention without due process
unless authorized by Congress. Of course, Congress can provide
important protections against abuses of executive or military
power. However, there should be no suggestion that Congress
could authorize detention that violates due process. The World
War II incarceration was still wrong, despite Congressional
approval of criminal penalties against those like Fred
Korematsu who resisted internment.
The present bill is truly a step in the right direction. It
clarifies that citizens and permanent residents are guaranteed
due process. However, in squarely addressing one danger, one
does not want to authorize others.
This Committee has an important opportunity to affirm to
this country and to the world that we are a Nation governed by
the rule of law, not military discretion, and a belief in basic
Thank you again for allowing me to speak.
[The prepared statement of Ms. Bannai appears as a
submission for the record.]
Senator Feinstein. Thank you very much.
STATEMENT OF STEPHEN I. VLADECK, PROFESSOR OF LAW AND ASSOCIATE
DEAN FOR SCHOLARSHIP, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF
LAW, WASHINGTON, D.C.
Mr. Vladeck. Senator Feinstein, Senator Grassley, and
members of the Committee, thank you for inviting me to testify
today. I would like to make three brief points:
First, as Senator Feinstein explained, the current law
regarding whether Congress has authorized the military
detention of individuals initially apprehended within the
United States is decidedly unclear.
Second, there are compelling constitutional and prudential
reasons why Congress should require a clear statement to
authorize such detention.
And, third, such an approach would not unduly interfere
with the President's power to incapacitate terrorism suspects
within the United States.
As popular media reports suggest, there continues to be
widespread public confusion as to whether the NDAA authorizes
the Government to subject to military detention individuals
initially apprehended inside the United States. The formal
answer, as this Committee knows, is that it does not. Thanks to
the Feinstein amendment, the NDAA merely preserves the status
quo--a status quo that is defined entirely by the AUMF and the
two cases arising under it involving domestic detention, the
Padilla and al-Marri cases that Senators Grassley and Feinstein
I think it is safe to say, though, that neither of those
cases, for the reasons Senator Feinstein suggested, clearly
resolve the question. Indeed, if anything is actually clear
about the status quo, it is its lack of certainty. I think the
question becomes what do we do.
Now, this leads to my second point. There are sound
constitutional reasons why Congress should have to speak
clearly. The Supreme Court has repeatedly read the Due Process
Clause of the Fifth Amendment to include both procedural and
substantive limits on who may be detained without trial and for
how long. And so for any individual protected by the Due
Process Clause, regardless of their citizenship, domestic
military detention will implicate constitutional concerns both
at its inception and as its duration increases.
Given that conclusion, it only makes sound institutional
sense to require Congress to provide a clear statement when it
comes to the military detention of individuals arrested within
the United States. Otherwise, Congress might trigger such grave
constitutional questions wholly by accident, or at the very
least without the deliberate and deliberative consideration
that such questions warrant.
In light of that concern, Congress has in the past enacted
such clear-statement rules. The Posse Comitatus Act of 1878
forbids the use of the army and the air force within the United
States ``as a posse comitatus or otherwise to execute the laws
. . . except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress.'' And to
similar effect, we have heard about the Non-Detention Act of
1971, which I have long believed requires a similar clear
statement as the Second Circuit held in the Padilla case,
although the Fourth Circuit decided to the contrary.
To the extent that amending the Non-Detention Act to
specify that clear or express authorization is the touchstone
would restore this understanding, the Due Process Guarantee Act
would provide a salutary clarification that the 2001 AUMF and
other use-of-force authorizations do not satisfy this plain-
statement requirement. As Deputy National Security Adviser John
Brennan recently explained, ``Our military does not patrol our
streets or enforce our laws--nor should it.'' Congress, in my
view, should amend the law to clarify that it shares this view.
My third and final point is that although some might
believe that such an expanded clear-statement rule would
unnecessarily circumscribe the Government's present authority
to detain terrorism suspects arrested within the territorial
United States, there are myriad existing authorities that would
unquestionably satisfy such a clear-statement rule.
For example, all Federal criminal statutes necessarily
satisfy the clear-statement rule since each expressly provides
authority for imprisonment, and the Bail Reform Act of 1984
expressly authorizes pre-trial detention in appropriate cases.
Given the Supreme Court's case law that presentment of a
putative defendant before a neutral magistrate need only take
place within 48 hours of an arrest undertaken without prior
judicial process--and even then there might be exceptions based
on exigent circumstances--the Government has a combination, as
Senator Feinstein suggested, of short- and long-term detention
authority for any individual arrested within the United States
on suspicion of terrorism-related offenses. And in my written
testimony, I elaborate on some of the other options available
to the Government in these cases.
Now, to be sure, some of these authorities are
controversial and may, in at least some of their applications,
raise distinct constitutional questions. For present purposes,
though, they serve as powerful testament to Congress' ability
to expressly authorize domestic detention at least when it
chooses to do so.
To be clear, the purpose of clear-statement rules is not to
chill legislative initiative but, rather, to ensure that
Congress proceeds deliberately in the face of the
constitutional concerns I have described and to prevent the
executive branch, whether this or any future President, from
seizing on statutory ambiguity to claim powers on the homefront
that Congress never specifically intended to confer.
Senator Feinstein, the very fact that this Committee is
holding this hearing helps reinforce one of the most important
points I could hope to make: that while reasonable people can
certainly disagree about the desirable scope of U.S. detention
authority, we should all have common cause when it comes to the
need for Congress to carefully and specifically consider how
that authority does and should apply domestically.
Thank you again for inviting me to participate, and I look
forward to your questions.
[The prepared statement of Mr. Vladeck appears as a
submission for the record.]
Senator Feinstein. Thank you very much, Mr. Vladeck.
Steven Bradbury, welcome again.
STATEMENT OF STEVEN G. BRADBURY, FORMER ACTING ASSISTANT
ATTORNEY GENERAL, PRINCIPAL DEPUTY FOR THE OFFICE OF LEGAL
COUNSEL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Bradbury. Thank you, Senator Feinstein. Thank you,
Senator Grassley and members of the Committee. It is an honor
to appear again before this Committee.
The proposed legislation seeks to bar the President from
detaining as an enemy combatant under the laws of war any
American citizen or lawful permanent resident of the United
States who is apprehended in this country, even if the person
is captured while acting as part of a foreign enemy force
engaged in acts of war against the United States.
Today, without this legislation, any American citizens or
lawful permanent resident who may be captured and held in the
U.S. as an enemy combatant would have the right to challenge
the legal basis for his detention in a habeas corpus
proceeding, and he would also have the procedural rights
guaranteed by the Due Process Clause.
The Supreme Court has reaffirmed these bedrock rights, and
they serve to ensure that no authorization for the use of force
or declaration of war could justify the detention of American
citizens who have taken no active part in assisting an enemy in
making war on the United States, such as was done with the
thousands of innocent Japanese Americans who were forcibly held
in internment camps during World War II.
In addition, if an American citizen is captured as an enemy
combatant engaged in hostilities against the United States, the
President--any President, I believe--would be strongly inclined
to bring criminal charges against that person and to try him
for his crimes in an Article III Federal court. Accordingly,
the instances will be exceedingly rare when a citizen may be
held without charge under the laws of war.
Nevertheless, in addressing the proposed legislation, we
need to consider the possibility that there could well be
extraordinary circumstances during an armed conflict when it
may prove necessary to detain a U.S. citizen as an enemy
combatant consistent with the laws of war. When considered in
light of that possibility, the proposed legislation raises
substantial problems, including both serious constitutional
concerns and significant practical issues.
In Hamdi, five members of the Supreme Court concluded that
the President's power to detain an enemy combatant is ``so
fundamental and accepted an incident to war'' that it plainly
falls within the ``necessary and appropriate force'' sanctioned
by Congress in the AUMF. And the Court held that this well-
recognized authority extends to U.S. citizens who act in league
with the enemy and engage in hostilities against the United
States. At the same time, a majority of the Court made it clear
that Yaser Hamdi could challenge his status as an enemy
combatant and the legality of his detention in a habeas corpus
proceeding, and that he retained full procedural due process
Although Hamdi did not directly address the President's
authority under Article II, there is an important
constitutional aspect to the Court's holding. The Court
recognized that the power to detain enemy combatants is a
``fundamental'' incident of the use of military force. It is
one essential element in the bundle of sovereign powers that a
nation may exercise under the laws and customs of war. Under
our Constitution, the authority to decide how the United States
will exercise these law-of-war powers is assigned to the
President as the commander of the Armed Forces. That is the
consistent constitutional balance we have followed throughout
S. 2003 would upset that balance by purporting to remove
from the President's command one of the essential elements of
the use of military force.
Congress clearly has an important share in the war powers
of the United States, in addition to the power to declare war.
But, historically, Congress has been careful to exercise its
constitutional powers in ways that preserve the full and
appropriate scope of the President's discretion to take actions
necessary to protect the United States in furtherance of his
duties as Commander-in-Chief.
S. 2003, however, would raise the prospect of a
significant, and I believe unnecessary, conflict between the
branches. This conflict is unnecessary because any American
citizen or lawful permanent resident captured in the United
States as an enemy combatant will have the right to habeas
corpus and the rights guaranteed by the Due Process Clause. S.
2003 would not confer those rights--they already exist and are
protected by the Constitution.
There is a further constitutional concern with this
legislation. It seeks to apply as a general matter in any and
all future conflicts, not just in the present armed conflict
with al Qaeda. The legislation would thereby purport to bind
future Congresses and to shift to the President the burden of
obtaining an express statutory authorization for detention.
Such a burden could seriously impede our ability to defend the
Nation from attack in extraordinary circumstances when the
threat facing the country is acute and there is a need to act
Finally, S. 2003 would create significant practical
First, it is a central strategy of al Qaeda to recruit U.S.
persons to carry out attacks against the United States. The
threat of homegrown terrorists acting in concert with foreign
organizations is likely to increase. Unfortunately, S. 2003
would have the effect of reducing the flexibility of the United
States to respond to that growing threat.
Second, if we capture on our soil a U.S. citizen or lawful
permanent resident who is such an enemy recruit and has been
actively involved in a plot against the United States, this
proposed legislation could seriously impede our ability to
gather critical intelligence from that combatant by requiring
that criminal charges be brought as a condition of his
Third, the information on which the United States bases the
decision to detain the individual may constitute sensitive
intelligence information or military secrets, and the
requirement to bring criminal charges would impose a greater
risk of disclosing such information to our enemies than may be
the case in a habeas proceeding.
For all these reasons, if I were advising the executive
branch today, I would recommend opposing this legislation.
Thank you, Senator Feinstein.
[The prepared statement of Mr. Bradbury appears as a
submission for the record.]
Senator Feinstein. Thank you very much, Mr. Bradbury.
I want to go right to something that you said, and that is,
on pages 9 and 10, the argument that the pursuit of criminal
charges could interfere with the gathering of intelligence from
a terrorist suspect.
I am in a position where I see that it has not, and that we
have had the successful criminal prosecution of over 400
terrorists since 9/11, including Umar Farouk Abdulmutallab, the
Christmas Day underwear bomber, including Najibullah Zazi and
his compatriots who were traveling across the country to put
bombs in the New York subway, as well as literally hundreds of
So doesn't this refuse your assertion, the fact that the
record does not document this?
Mr. Bradbury. Well, Senator Feinstein, I think we can all
be thankful that circumstances have not arisen thus far that
pose extraordinary circumstances where the law enforcement
tools that are the primary vehicle for apprehending and
handling terrorist suspects in the United States are not
sufficient. But what I am posing is the distinct possibility of
extraordinary circumstances where al Qaeda or other terrorist
organizations affiliated with al Qaeda have recruited U.S.
residents to infiltrate the country through secret cells to
conduct mass attacks on the United States, and in
circumstances, for example, of an unfolding plot or attempted
attack where these individuals are apprehended.
The introduction of criminal process as a requirement, as a
condition to detention, may require early administration of
Miranda warnings, early access to courts, early access to
defense counsel, and these usual attributes, which we obviously
recognize and value of the criminal law enforcement process,
can interfere with the necessary situation required for
intelligence gathering and intelligence questioning.
Senator Feinstein. I really dispute that. Since your day
here, what has happened is the FBI now has 15,000 people in an
intelligence unit in 57 offices across the United States, and
that is how 20 potential attacks were prevented. Abdulmutallab
was Mirandized. It did not stop him from pleading guilty. He
has pled guilty, and he is serving a life sentence. So I do not
think the theory matches the practice.
You say that to indefinitely detain United States citizens
is an accepted incident of military force, but doesn't the
Posse Comitatus Act, which has been with us for over a century,
fly in the face of the assertion that domestic apprehension by
the military of United States citizens is ``fundamental and
Mr. Bradbury. The Posse Comitatus Act does prohibit the use
of the military for domestic law enforcement purposes, and I
would certainly expect that in almost any case the apprehension
of the enemy combatant who is found on U.S. soil would most
likely take place through law enforcement resources like the
FBI, U.S. Marshals, or local law enforcement, et cetera, and
due process would apply to the arrest or apprehension. But the
question would be then: Would that individual be susceptible to
transfer to military custody in the event it was determined
that he was an enemy combatant actively engaged in war against
the United States? And that is a right or power that any
sovereign country has, and it is recognized under--as the
Supreme Court said, well recognized under the laws and customs
of war. And the concern I have is that this legislation would
purport to strip away that sovereign power that any country has
and prohibit the exercise of that option in an extreme
circumstance where it may be determined that it is necessary.
But I would acknowledge that it would be, as I tried to
stress, very, very rarely used, and that it would be any
President's intention, I firmly believe, wherever possible, to
handle any U.S. citizen apprehended in the U.S. through the
Senator Feinstein. Let me just respond and turn quickly to
our Ranking Member, Senator Grassley. I think the point is to
maintain flexibility for the administration so that you have
the choice actually, but the issue here is no charge or no
trial until the end of hostilities, which can be 30 years from
now. So that I think is an overwhelming issue that the
Constitution speaks to loud and clear.
But, anyway, Senator Grassley.
Senator Grassley. I am going to follow up where Senator
Feinstein left off with you, Mr. Bradbury. This is about
classified intelligence information. Recently a couple of high-
profile leak prosecutions have fallen apart in court because
the Justice Department was ordered to allow the defendant to
introduce classified evidence. At least one case is now on
interlocutory appeal. Isn't this evidence that the Classified
Information Procedures Act may not be enough protection for
classified information compared to a military commission?
Mr. Bradbury. Yes. That was the determination I think we
made and Congress made in enacting the Military Commissions
Act, which does not apply to U.S. citizens but, nevertheless,
recognizes that the Article III court ordinary criminal process
does not provide sufficient protection in all cases--at least
in some cases, I mean, for sensitive intelligence, because if
the United States is going to prosecute someone for a crime
that depends on the use of the classified information, they are
going to have to divulge it. They are going to have to use it
in court as evidence. And so what you will see is the criminal
charges that may be brought in a particular case may be far
narrower and more modest than the full range of information
that the United States may have about that individual's
Senator Grassley. I want to go to the procedures that the
White House released last night. They were required by Congress
outlining steps and authority of the executive branch
following--that has to follow before transferring an individual
to military custody consistent with 1022. Repeated throughout
the procedures and the accompanying fact sheet is the express
statement that neither the mandatory military detention
requirements under 1022 nor the procedures implementing 1022
apply to U.S. citizens. In fact, the procedures outlined such a
convoluted process, as I see it, that it is actually tough to
imagine a situation where even a non-U.S. citizen or member of
al Qaeda captured abroad would be subject to the mandatory
So, Mr. Bradbury, if you are familiar with the new
procedures that were released, isn't it true that under Section
1022 U.S. citizens are expressly exempt from mandatory military
Mr. Bradbury. Yes, that is true.
Senator Grassley. And under the administration's procedures
published last night, lawful permanent residents would also be
exempt from mandatory military custody under that Act?
Mr. Bradbury. Yes, my review indicated that the President
was proposing, in effect, a blanket waiver from mandatory
military detention for lawful permanent residents or resident
Senator Grassley. But before someone can be held in
military custody, the procedure required the Attorney General
to get sign-off from the Secretary of State, Secretary of
Defense, Secretary of Homeland Security, Chairman of the Joint
Chiefs of Staff, Director of National Intelligence, and then
even if he gets sign-off there, the FBI Director can
essentially veto the transfer to military custody if it will
disrupt an intelligence collection or national security
You worked in the executive branch, Mr. Bradbury. How
difficult would the sign-off process be as outlined in the
Mr. Bradbury. Well, it is quite extensive, and I think I
would just point out, Senator Grassley, that it seems apparent
that these procedures are intended to limit as far as possible
the scope and application of the mandatory military detention
provisions of the NDAA. And I think that is consistent with the
policies of the administration, which have made it clear that
they wish to address the terrorism problem domestically
primarily as a law enforcement matter. And I think it is also
consistent with what Senator Feinstein said, which is that the
executive branch is going to want to maintain flexibility and
is going to want to resist restrictive provisions one way or
the other that Congress might attempt to apply by statute on
the President's handling of enemy combatants. And I think that
is reflected in the procedures, and I think it is reflected in
the comments I am making, which really are a plea for
flexibility between the branches.
Senator Grassley. My next question is a long one, so let us
go, and I will in the second----
Senator Feinstein. All right. Senator Franken was--we use
early bird, if that is all right, so----
Senator Franken. Do you want to ask your long question? May
I ask the Ranking Member if you would like to ask your long
Senator Grassley. I will take advantage of that if nobody
Senator Franken. I was just asking if you wanted to. I did
not say I would let you.
Senator Franken. No, no. Go ahead.
Senator Grassley. Thank you.
Mr. Bradbury, we have been at war since 9/11. In fact, al
Qaeda formally declared war on the United States in 1998 when
they attacked two embassies and then attacked the USS Cole, and
obviously we did not listen to al Qaeda. Only after 3,000
people were murdered did we, and even after bin Laden's death,
al Qaeda and its affiliates still continue to plan attacks
As we get better at thwarting al Qaeda's efforts, they are
now recruiting and radicalizing inside the United States, but
considering how dangerous our enemy is--and we have done pretty
well balancing civil liberties and the need to defend ourselves
effectively--we have not imprisoned innocent U.S. citizens en
masse or shut down newspapers. And anytime the actions of
President Bush or President Obama have raised controversy,
their actions have been robustly challenged in public
discourse, the media, Congress, and the independent court
system. So I am concerned when inappropriate comparisons to the
war on terror are made.
So, Mr. Bradbury, do you think there is any comparison
between the internment of innocent U.S. citizens and the
detention of terrorists affiliated with or directed by al Qaeda
to kill Americans?
Mr. Bradbury. Actually, no, I do not. I do not think that
is a fair comparison. I think that the vast majority if not all
of the innocent Japanese Americans who were, regrettably,
interned during World War II were not held under a proper
interpretation of the law of war as enemy combatants. There was
some amorphous claim of national security need. They would not
be held by a Federal court in a habeas proceeding to satisfy
enemy combatant definitions under the law of war. So they would
not fall within the scope of what we are talking about here,
which is the President's background authority--really, it is
the Nation's, which I am trying to stress. It is a sovereign
power that any nation has to detain under the laws of war enemy
combatants who make war on that nation. And they would be
subject to habeas review in a Federal court under the
Boumediene decision and others of the Supreme Court, would hear
evidence and would make a determination as to whether they are
lawfully held properly as an enemy combatant, and they would
have due process rights in that proceeding. The Court has made
it clear. If those things were applied to Japanese Americans
interned in World War II, a proper determination would have
been to release them all because they could not have been held
as enemy combatants under the law of war.
Senator Grassley. Thank you, Senator Franken, for your
Senator Franken. You are very welcome.
I would note that right after we did 9/11 imprison a lot of
people who it turned out it was unwarranted and people who were
put away and had no ability to contact a lawyer, no ability to
tell their family where they were. So I would just--since the
Ranking Member asked that question, I would remind us that
every one of these circumstances is a little different. So I
think the comparison here to what happened during World War II
is a little bit more significant than Mr. Bradbury might
suggest, and I see Ms. Bannai nodding her head.
I want to start by thanking Chairman Feinstein for her
incredible leadership on this issue. Last December, when the
Senate was debating the defense authorization bill, there were
very few Senators who were as tenacious as Chairman Feinstein
in pushing for better language to be included to prevent the
indefinite military detention of American citizens. And I
really want to applaud her efforts to get a better bill passed
I filed two amendments that would have stripped two of the
detention provisions from the defense authorization.
Unfortunately, I was not able to get votes on my amendments,
and despite our best efforts, Congress ended up passing a bill
that will radically alter how we investigate, arrest, and
detain individuals suspected of terrorism, and this in my mind
is a complete mistake. The idea that we could arrest and detain
U.S. citizens and other persons living in the U.S. indefinitely
without charge, without trial by jury, a jury of their peers,
and without having to prove guilt beyond a reasonable doubt is,
in my opinion, a denigration of the Bill of Rights. It is a
denigration of what our Founders created when they established
a civilian non-military justice system for trying and punishing
people for crimes they commit on U.S. soil. And while I support
Senator Feinstein's bill and agree our priority should be
making sure that American citizens are not arrested by the
military in the U.S., I think it is a mistake for the military
to be authorized to detain anyone here in the United States,
regardless of whether they are a citizen or not.
Ms. Bannai, when Congress enacted the Posse Comitatus Act
just after the Civil War in 1878, or 13 years after the end of
the war, we did so because we wanted to make it clear that the
military could not and should not enforce our laws within the
borders of the United States. Do you think the detention
provisions that passed last year undermine that core principle
and potentially put us one step closer to permitting martial
law in this country?
Ms. Bannai. Thank you very much, Senator, for that
question. I have a couple of responses.
No, we have not imprisoned innocent citizens en masse, but
I would like to suggest that we need not in order to raise due
process concerns. Fortunately, we have not imprisoned a hundred
thousand, but due process guarantees apply to individuals.
There is a serious concern about allowing the detention of
citizens and anyone in the United States without due process.
The issue regarding the internment during World War II is
really who decides who is guilty of espionage and sabotage.
During World War II the military decided, and I am very, very
concerned about who will make that decision today.
There has also been expressed some concern about early
access to Miranda warnings, courts, and counsel. I do not think
that is something to fear. I think that is something that this
It has also been said that anyone detained will have a
right to habeas corpus. That guarantee did not do much for
Japanese Americans during World War II. Japanese Americans were
interned during the spring of 1942. It was not until December
1944 that Mitsuye Endo's habeas corpus petition was granted to
release Japanese Americans from internment camps.
Yes, I am concerned that at present we are going to have
the military involved in detaining citizens and giving the
military unfettered discretion in deciding who should be
detained and who should not be, and that is a tremendous
concern to me. I think there are tremendous parallels between
what happened during World War II and what we are facing today.
Senator Franken. Thank you, Ms. Bannai. I will note that I
am running out of time. I think in light of the courtesy that I
extended to the Ranking Member that I be granted----
Senator Grassley. My next 5 minutes in round two, you can
take it right now. I have got to go.
Senator Franken. That is very generous of you, considering
you are leaving.
Senator Franken. Well, I will just take a moment here
because I do not like going over, and I just want to address
Mr. Bradbury, I just have to confess I am not a little
disappointed to see that you were called to testify before us
today. I think it is important to remind people watching this
hearing that you are the author of several memos that
authorized the use of enhanced interrogation techniques or what
I and a lot of other people call ``torture'' during the Bush
administration. One of your memos specifically authorized the
use of waterboarding, cramped confinement, slapping, stress
positions, nudity, and dietary manipulation, and a subsequent
memo said you could combine some of those techniques together
and it would not constitute torture.
In addition to this history, a lengthy investigation by the
Office of Professional Responsibility concluded that you had
drafted these memos with the goal of allowing the CIA torture
program to continue, so it is very difficult for me, frankly,
to rely on your legal opinion today. If the Office of
Professional Responsibility questions your objectivity and
reasonableness, then I think we on the panel all should as
Again, I realize I have gone well over my time, and I thank
the Chair for allowing me to make this quick note for the
record. And, Madam Chair, I would also like to add the
Department of Justice's Office of Professional Responsibility's
report on Mr. Bradbury to the record.
Senator Feinstein. So ordered, and I thank you, Senator.
[The report appears as a submission for the record.]
Senator Franken. Thank you.
Senator Feinstein. I would also like to put in the record
the testimony of Dr. Scott Allen, associate professor of
medicine, University of California-Riverside. That will go into
[The testimony appears as a submission for the record.]
Senator Feinstein. Senator Lee.
Senator Lee. Thank you, Madam Chair, and thanks to the
witnesses for being here today.
I, too, want to thank you, Senator Feinstein, for
sponsoring this legislation, which I am very proud to
cosponsor. I believe that the most important purpose of our
Constitution is to place restrictions on the ability of the
Government to interfere with our individual liberties. It is
somewhat difficult to conceive of anything that interferes more
with our liberty than a power exercised by the Government
indefinitely to detain a U.S. citizen without trial. And that
is exactly why I am very happy to cosponsor this legislation.
I would like to start my questions with Professor Vladeck,
if I could. First of all, how do you respond to the argument
made by Mr. Bradbury that restricting the detention of U.S.
citizens apprehended on U.S. soil might interfere with the
President's commander-in-chief powers in a way that might be
Mr. Vladeck. Thank you, Senator. I think there are a couple
of arguments, and so I think it depends on whether we are
talking about short-term detention authority or long-term
detention authority. I suspect my friend Mr. Bradbury would not
dispute that the President has a wide array of authorities to
incapacitate even a U.S. citizen temporary, in the short term,
to prevent an imminent attack on suspicion of criminal
activity, et cetera. So the real question, I think, is now
would a requirement such as the one that the Due Process
Guarantee Act would impose interfere with the President's
short-term authority but, rather, his long-term authority. I
think there the response is that same argument would suggest
that the Non-Detention Act itself raises similar constitutional
concerns even though President Nixon, who was hardly shy about
voicing constitutional concerns vis-a-vis Executive power, did
not object to the constitutionality of the Non-Detention Act on
those grounds. And I think nothing would stop Congress, as
Senator Feinstein suggested, from coming back and providing the
very authorization it believes the President needs. My
understanding of the bill is that the point is not to forbid
such authorization but, rather, to require Congress
specifically to authorize it.
So that is why I think in the short term it would not be a
problem at all, and to the extent that it might be seen as a
problem in the long term, it is one that prior Presidents who
were rather ardent supporters of constitutional authority did
not find--as Justice Jackson put it, the Commander-in-Chief
Clause makes the President commander-in-chief of the military,
not the country, and I think that is the principle at stake
Senator Lee. I assume you would argue further that any
constitutionally problematic implications from that would be
dwarfed in comparison to the intrusions, the effect of not
having a provision like this in the law might result in a
violation of the Fourth, Fifth, and Sixth amendments and the
Suspension Clause and other constitutional protections.
In his dissent in Hamdi, Justice Scalia argues that the
Constitution does not permit indefinite detention of citizens
without charge absent one of two things: either suspension of
the writ of habeas corpus or charges. You know, you have got
two options there. Do you agree with his analysis in Hamdi?
Mr. Vladeck. I have to confess I am actually slightly more
partial to Justice Souter's analysis in Hamdi. I think even
Justice Scalia does not necessarily agree with Justice Scalia's
analysis in Hamdi. He, for example, has supported State laws
that provide for the civil commitment of sex offenders, which
would be inconsistent with that principle.
I think there are very serious due process constraints on
when citizens can be held and non-citizens who have due process
rights can be held without criminal charges, but I do not think
it is a categorical bar along the lines that Justice Scalia
Senator Lee. I think he justifies that--there is a portion
of his dissent, I think, that addresses that. He would probably
categorize that in the same category where he talks about
quarantine laws and indefinite detention on the basis of
Mr. Vladeck. Right, and I think--I mean, obviously, I think
the distance between Justice Scalia and me on this point is not
very much. But, you know, I am mindful of the case of Gaetano
Territo, a U.S. citizen who was found in the Italian army
during World War II, and it seems to me that if international
law authorizes the detention of enemy soldiers as prisoners of
war, as during World War II clearly it did, then, you know, I
am not sure that Justice Scalia would think that we had no
power to detain even someone like Territo in that context. But
I think the authority is incredibly limited, and as Justice
Souter suggested in Hamdi, it really should require Congress to
expressly provoke the question.
Senator Lee. Thank you.
Mr. Bradbury, in your testimony you state that the
instances will be rare in which an American citizen apprehended
on U.S. soil might be held for an extended period of time
without charge. If that is the case, then might it not make
sense simply to subject those people to the criminal process,
to charge them on charges of treason, or whatever the case may
be? Given the fact that this might arise in relatively few
instances, shouldn't you just balance that by saying let us
just put them through the process?
Mr. Bradbury. Well, the concern would be that one instance,
which is very difficult to predict, where the criminal process
may not be sufficient. And it is hard to predict what the
particular circumstances might be, but there may be an acute
necessity perceived both by Members of Congress and the
President that there is an unfolding threat and an individual
is involved and that individual needs to be detained for some
period where intelligence questioning can occur, where we can
continue to keep secret the sort of sensitive information that
we would necessarily need to disclose if we had to bring
charges, criminal charges against that person.
And so those are the circumstances that I am talking about,
and I am certain that they will be rare. There has really been
one individual since 9/11 who was a U.S. citizen apprehended in
the United States who was held under laws of war as an enemy
combatant. So I am confident any President would do whatever he
could to avoid the circumstance, and that is why I think the
proposal for the legislation--and I understand the sentiments
behind it, but I think it creates a potential for conflict that
because of the rarity of the circumstances we are talking about
I think is really unnecessary to confront that and to create
that potential for conflict.
Senator Lee. Thank you very much, Madam Chair, and I see my
time has expired. Thank you very much.
Senator Feinstein. And thank you very much.
Senator Graham, welcome.
Senator Graham. Thank you, Madam Chairman. I appreciate it
very much, and to all of you for coming. This is, I think, a
really good topic for the country to be discussing, and I would
like to start off kind of explaining my thinking.
I believe that after 9/11 we have been in an undeclared
state of war with al Qaeda and that the attacks of 9/11 should
be viewed from the law of armed conflict perspective, not the
domestic criminal law perspective.
Who are the two professors? I am sorry. OK. Do you agree
with the proposition that we are at war with al Qaeda?
Mr. Vladeck. I think yes. I think Congress has so found. I
think the Supreme Court has so held, yes.
Senator Graham. OK. Ma'am?
Ms. Bannai. Yes.
Senator Graham. OK. Well, that is a good place to start
because here is my goal: As Senator Lee was saying, the idea of
an American citizen collaborating with al Qaeda I hope is,
Steven, very rare. I think we have had two cases. What drives
my thinking, Senator Feinstein, is that my primary goal is to
get as much good intelligence as we can when we capture
someone. And I would like to give the administration really
high marks for taking the fight to al Qaeda along the Pakistan
border. These drone attacks, the bin Laden raid were really, I
think, a tough call for the President to send people deep
inside of Pakistan. I thought he had every legal right to do
so, and, quite frankly, that was a good outcome. But we just
cannot kill all these guys and be safe. When we capture
somebody, it is a golden opportunity to find out about what the
enemy is up to in future attacks.
Mr. Bradbury, does the law enforcement model in the United
States really allow you to gather military intelligence
Mr. Bradbury. Well, I do not believe it does, Senator
Graham, based on my interactions with intelligence community
folks and folks in the military and the work that we did so
Senator Graham. Well, let us say that we captured an
American citizen in Afghanistan like the Hamdi case. Does
anybody on the panel believe that we should read them their
Miranda rights in Afghanistan? Two noes?
Mr. Vladeck. I would say, you know, if he was captured by
the military, obviously the military is not about to read him
his Miranda rights. I think if he is arrested by the FBI, even
outside the United States, that changes the calculus.
Senator Graham. OK. That is a very good point, and the
calculus I am trying to say is that the goal is to gather
intelligence. It is not the agency that makes the capture. The
national security goal is to find out what that person, even if
it is an American citizen, knows about enemy operations.
The fact pattern that I think we could face 1 day is
someone here in the Nation, an American citizen, gets
radicalized, like the Major, gets online and believes that
jihad is their calling, goes to Pakistan, trains at a
madrassah, and they come back to Dulles. There are two fact
So we know from the intelligence picture that they are in a
madrassah that is very linked to al Qaeda, radical thought. How
do you say your last name, sir, Stephen?
Mr. Vladeck. Vladeck.
Senator Graham. If we captured them at Dulles airport,
would you have to read them their rights?
Mr. Vladeck. Well, Senator, as you know, I think it is
important to remind the Committee that, you know, Miranda is an
exclusionary rule, and so what that means is that if evidence
is obtained in violation of a defendant's Miranda rights, it
can be suppressed at trial. But with regard to can you
interrogate him, Miranda does not actually stop them from doing
Senator Graham. But Miranda says you have a right to a
lawyer and not just to remain silent. So I guess what I am
saying is that the military model of interrogating a prisoner
overseas in every other war never gave an enemy combatant a
lawyer in the interrogation process. Now, you get a lawyer when
you go to a habeas proceeding, so Judge Mukasey made that
distinction in Padilla. They did not say that Padilla had a
right to an attorney during the interrogation. They said he had
a right to an attorney during his habeas hearing. And one of
the Congressmen said that we have suspended habeas corpus.
Nothing could be further from the truth. Everyone captured in
the United States held as an enemy combatant has a habeas right
to appear before a judge. Do you agree with that?
Mr. Vladeck. I agree with that, although that was not
always the position of the Bush administration.
Senator Graham. No, let me tell you--will you verify that I
have been at odds with you guys, too?
Mr. Bradbury. Yes, absolutely.
Senator Graham. I am trying to find that middle ground.
Mr. Bradbury. And there has been an evolution, I think. A
Senator Graham. An evolution by the courts, and, quite
frankly, I think the Bush administration relied way too much on
Executive power, and that this administration is reluctant to
use power that has been there. I think the In re Quirin case is
a classic example. You had American citizens involved in
helping Nazi saboteurs. They were tried by a military
commission. Of course, nobody in World War II ever suggested
that an American citizen helping the Nazis, somehow that became
a criminal act. My view is that an American citizen helping al
Qaeda is basically engaging in a war against us, the rest of
us, and we already used the military justice model. But we do
not allow military commissions for American citizens, and I am
OK with that.
Here is the rub: This is a war without end. So what I have
tried to do is initially allow, Senator Feinstein, that initial
capture, that guy coming back from the madrassah, that we could
hold them without torturing them for the intelligence-gathering
purposes--that is a lawful activity because we are at war--and
they cannot be tried in military commissions. So the idea that
they will go to an Article III case, that is the disposition.
But if you use the law enforcement model, the public safety
exception does not get you to where you want to go, and I just
do not want to lose intelligence. I do not want to put people
in no-man's-land. I want every case to go before a Federal
judge, and the judge has to agree with the Government that
there is ample evidence to say you are an enemy combatant,
defined under the very narrow statute. And that is all I am
trying to do. I do not want to torture anybody. And prosecution
is a secondary concern to me. Like the Christmas Day bomber
case, there is plenty of evidence that he tried to blow up the
airplane. When we read him his Miranda rights, there were a
couple of weeks that went past. The FBI went to his parents,
and they basically talked him into cooperating.
What I would like to do is just hold him for a period of
time, collect intelligence from agencies around the world, and
make a reasoned decision about when to prosecute and how to
prosecute. And I think we have done that with our legislation.
In all due respect, I think reading Miranda rights when you
capture someone on the homeland is not the best way to gather
intelligence. I do not want to torture anybody. I want to make
sure they have an independent judiciary. And we will keep
working on this to see if we can get it right. But you made a
really good point. The homeland to me is part of the
battlefield. When you wrap your head around the idea that the
homeland is part of the war on terror battlefield--and just
like in other wars, when an American citizen went over to the
enemy, they were treated as somebody engaged in a war activity,
not a common criminal activity.
So, Senator Feinstein, I look forward to working with you
to see if we can find a way to make sure we are all on the same
sheet of music, and I know that you as the Intelligence
Committee Chairman want to preserve intelligence gathering
because that is the best way to defeat this enemy, and at the
same time, you want to make sure that there is due process.
And just finally on the issue of American citizens, this
will be a rare event, but when that day comes--and homegrown
terrorism is a real problem--I want to make sure we have a
legal system that recognizes the distinction between fighting a
crime and fighting a war. And that has always been my goal. And
thank you for this hearing, and to be continued.
Senator Feinstein. Let me thank you, Senator Graham. You
know, I wish you could see what I see in spending most of my
time on Intelligence. We have never been more proficient than
we are today. The FBI has never been as effective at
interrogation as they are today. We just reviewed the budget
and intel, and the numbers--well, the numbers that have been
released are 10,000 to 15,000 people in the FBI who do
intelligence today all across the United States. So the
opportunity to surveil, the opportunity to collect evidence
certainly was there. And Najibullah Zazi is a classic case,
from Colorado to New York. And the case was made.
Abdulmutallab, you pointed out, it was dead bang. He was
Mirandized, but he pled guilty. And so, you know, I think the
key is flexibility, and flexibility for the Executive as to
whether this be trial by Federal court or by military court.
You know, having said this, I think there is really a basic
need because being in the wrong place at the wrong time and
looking the part--I mean, Japanese Americans, that is how they
got interned. And so in any event, there is a difference of
opinion. As you know, I love working with you. I would be very
happy to sit down and see if we cannot work this out. But there
is a very profound, I think, kernel of American jurisprudence
and constitutional rights involved in all of this.
I did want to make one comment to you, Mr. Bradbury, and
that is on the Classified Information Procedures Act which
protects classified information, which gives an Article III
judge the ability to keep it separate. And I just wanted to
point that out.
I want to thank everybody, Ms. Bannai, Mr. Vladeck, Mr.
Bradbury, thank you. It is good to have you here.
Senator Graham. Madam Chairman, can I just respond?
Senator Feinstein. Sure.
Senator Graham. Let me just tell you where I agree and
disagree. I am an all-of-the-above approach guy. Article III
courts are a fine venue for terrorism cases. The intelligence
community are unsung heroes. But we have been lucky. The bomb
did not go off in Detroit because it just did not go off. The
Times Square bomb did not go off because the guy just did not
know how to set it off. Those are two situations where the
system did fail--not because people did not try, but it is just
you have got to be right all the time to have to be right once.
And here is the difference between, I guess, our positions:
Once we capture these guys, I do not want to read them their
Miranda rights. I want them to be uncertain as to what is going
to happen to them. They are not going to be tortured. But I
want to hold them long enough to gather intelligence in an
effective way: Where did you train? Where did you go?
Now, maybe reading Miranda rights is the best way to get
that intelligence. I am not saying you cannot read Miranda
rights. Let us leave that up to the professionals. I am just
trying to create a legal system that understands the
distinction between prosecuting somebody for a crime and
If the executive branch wants to read Miranda rights, that
is fine with me. But I believe most Americans have a hard time
dealing with these cases from a law enforcement perspective. In
no other war did we do this. When we captured the American
citizens helping the German saboteurs, they were deemed an
enemy combatant of this country. I do not want to lose that
thought process. We are really talking about a handful of
people as American citizens. But the idea of the war's coming
to our homeland is real, and when you capture somebody--if the
President says we can kill an American citizen in Yemen through
the executive branch decision you are an enemy combatant, I
support that. Why in the world couldn't we hold them for
It makes no sense to give the Executive branch the power to
assassinate somebody who is actively helping the enemy abroad,
and if they are lucky enough to make it to the homeland, all of
a sudden it is a common crime. I am trying to avoid that
dilemma. And I want flexibility, but I want a legal regime that
understands the difference between fighting a war and fighting
a crime. And I think there is a way for all of us to get there.
Thank you very much. God bless. And to those intelligence
people working hard, I believe in you. And to the Article III
prosecutors, I think you are doing a great job. And to the
military commission prosecutors, I think you are doing a great
job. And to the Obama administration, thanks for using both
Senator Feinstein. OK. In response to you, there is a
public safety exception to Miranda which can be used, which
gives the opportunity to collect intelligence. There are also
four other methods which I outlined in my opening statement.
But I have to be somewhere else, and you are always
Senator Graham. To be continued.
Senator Feinstein. And I always enjoy discussing it with
The hearing is adjourned. Thank you, everybody.
[Whereupon, at 11:50 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
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