Sen. Franken's on the Detainee Provisions in the Defense Authorization Bill
(As Prepared for Delivery)
M. President, I rise today to express my strong opposition to the detention provisions in the defense authorization bill. I'm disappointed that Senator Udall's amendment did not pass. But now I want to focus my remarks on my serious concerns with Sections 1031 and 1032. I have filed two amendments — numbers 1433 and 1434 — that would strike each of these provisions, and I ask unanimous consent to call them both up.
Taken together, sections 1031 and 1032 would fundamentally alter how we investigate, arrest, and detain individuals suspected of terrorism.
Before I get into the details of why I oppose these detainee provisions, I think it is important to recognize that September 11th irrevocably and unalterably changed our lives. I was in Minnesota that terrible day. A number of Minnesotans died — in the towers, in the air, and at the Pentagon. In New York in the months following the attacks, I attended the funerals of brave firefighters and law enforcement officers who sacrificed their lives to help rescue Americans from the towers. I can't shake those images from my mind, and I am guessing like many of you, I won't ever be able to erase the horrors of September 11th from my head.
September 11th reminded us that we are vulnerable. And that we are fighting an unusual enemy. It forced us to reassess our approach to counterterrorism, and it forced us to redouble our efforts to track down the people who aim to do us harm.
But it is exactly in these difficult moments, in these periods of war, when our country is under attack, when we must be doubly vigilant about protecting what makes us Americans.
The Founders who crafted our Constitution and Bill of Rights were careful to draft a Constitution of limited powers-one that would protect Americans' freedom and liberty at all times-both in war, and in peace.
Today, as we contemplate fundamentally altering the criminal justice system our Founders developed in order to create a military detention system-a system that would permit the indefinite detention of U.S. citizens and lawful residents of the U.S. for acts committed here in the U.S.-I think it is important to pause and remember some of the mistakes this country has made when we have been fearful of enemy attack.
Most notably, we made a grave, indefensible mistake during World War II, when President Roosevelt ordered the incarceration of more than 110,000 people of Japanese origin, as well as approximately 11,000 German-Americans and 3,000 Italian-Americans. There is a memorial right across the street from the Capitol that should remind all of us of this horrific mistake.
In 1971, President Richard Nixon signed into law the Non-Detention Act to make sure the U.S. government would never again subject any Americans to the unnecessary and unjustifiable imprisonment that so many Japanese-Americans, German-Americans, and Italian-Americans had to endure. It wasn't until 1988, 46 years after the internment, when President Reagan signed the Civil Liberties Act, that the government formally acknowledged and apologized for grave injustice that was done to citizens and permanent residents of Japanese ancestry.
These were dark, dark periods in American history. And it is easy, standing here today, to think that is all behind us, that it is a distant memory.
But I fear the detention provisions in this bill forget the lessons we learned from the mistakes we made when we interned thousands of innocent Japanese, Germans, and Italians, or when we destroyed the lives of supposed communist sympathizers with nary a shred of evidence of guilt.
In the weeks following September 11th, the Justice Department made extraordinary use of its powers to arrest and detain individuals. We arrested hundreds of people for alleged immigration violations, and dozens more under a material witness statute. None of these individuals were charged with a crime. And all of this happened without the military detention scheme envisioned in this bill. This was also a mistake, and one that shouldn't be repeated.
But if we pass the defense authorization with Section 1031, Congress will, according to the arguments that were made on the floor last week, for the first time in 60 years, authorize the indefinite detention of U.S. citizens without charge or trial. This would be the first time that Congress has deviated from President Nixon's Non-Detention Act. And what we are talking about here is that Americans could be subjected to life imprisonment. Think about that for a minute. Life imprisonment. Without ever being charged, tried, or convicted of a crime. Without ever having an opportunity to prove your innocence to a judge or a jury of your peers. And without the government ever having to prove your guilt beyond a reasonable doubt.
I think that denigrates the very foundations of this country. It denigrates the Bill of Rights. It denigrates what our Founders intended when they created a civilian-non-military-justice system for trying and punishing people for crimes committed on U.S. soil. Our Founders were fearful of the military—and they purposely created a system of checks and balances to ensure we did not become a country under military rule. And if this bill passes, the Supreme Court should find these detention provisions unconstitutional.
But let's put that aside for now-and focus on what we are currently doing right to fight terrorism. Because we are doing a heck of a lot of great things when it comes to our national security. I think we need to remember that. And we need to remember that we are winning the fight against terrorists without trampling on our constitutional rights.
Just last May, under the tremendous leadership of President Obama and Secretary Panetta, we hunted down and killed Osama bin Laden. A few days ago, the Washington Post reported that Al Qaeda core has contracted and weakened since then, and its leadership ranks has been reduced to two members. To be sure, that does not mean that al Qaeda is no longer a threat, particularly coming from groups outside the core. But it is a remarkable achievement.
Our current counterterrorism strategy is not broken. Indeed, just the opposite is true. We are winning the war against al Qaeda. There is no indication—none—that we need to fundamentally alter our approach to locating terrorists here or overseas.
Under Director Mueller's leadership, the FBI has turned itself inside out, and over the last ten years since September 11th, it has become an intelligence gathering counterterrorism machine.
I can't say that I have always agreed with 100% of the FBI's tactics-and there are times when I worry they may be overstepping-but make no mistake, if our goal is hunting down the bad guys-the FBI knows what they are doing. There is no reason to think we need to change course and create an entirely new system that would completely supplant the resources and expertise of the FBI.
For those who would argue that we need to shift these people out of our civilian criminal justice system and away from Article III courts and into a military system, I have to ask... why? Where is the sign that we have a problem that needs fixing?
There is no reason to think we need to create an entirely different framework for a problem we have been dealing with for centuries. This enemy is not so different that we need to upend our criminal justice system.
M. President, I think this is a solution in search of a problem. There is no need to go down this path. We should be focused on doing what is best for this nation and what is best for protecting Americans. We should be working together on this—not coming up with additional ways to divide and polarize this country.
That's why when the Secretary of Defense, the Director of National Intelligence, and the Director of the FBI express serious concerns about these provisions, and when the President's top counterterrorism advisor, John Brennan, complains that these provisions will make it even harder for them to locate and detain terrorists in the U.S. and overseas, we should listen.
Section 1031 runs the risk of authorizing the indefinite detention without trial of Americans. Section 1032 is unnecessary and complicates our counterterrorism policy. They are bad policy.
In short, these provisions should not be passed. They are not well-considered counterterrorism policy, and they would authorize poorly understood but deeply troubling policies. That's why I've offered amendments that would strike each of the two sections I've discussed. That's why I cosponsored Senator Udall's amendment that would have sent these matters back to the Administration and the relevant committees of Congress for the full consideration, discussion, and debate they deserve. Our national security and our freedom require nothing less. Thank you.