He sent me, and many others, this form letter just now. My two cents: It seems reckless to pass a bill with so many abhorrently unconstitutional provisions, relying on a line-item veto to “fix it in post.”
Read and decide for yourself:
Dear Mr. Cox:
Thank you for contacting me regarding the detainee provisions in the Fiscal Year 2012 National Defense Authorization Act. I appreciate learning your thoughts on this important matter and welcome the opportunity to respond.
Since enactment of the Posse Comitatus Act of 1878, the role of the U.S. military in enforcing our domestic laws inside the United States has been very limited. During the week of November 28, the Senate considered S.1867, the Fiscal Year 2012 National Defense Authorization Act. This legislation includes sections specifically authorizing our military to arrest and detain anyone, including U.S. citizens inside America, who the President suspects may be connected to Al Qaeda or the Taliban.
In my view, American citizens inside this country have inalienable Constitutional rights that can only be removed by a civilian jury of your peers. Others argue that America is a “battlefield” where the President should have the power to order our military to seize U.S. citizens in this country on a suspicion that they may back terror.
Under the Declaration of Independence, Americans were promised rights against the State that were “inalienable”, i.e. no future President or Congress could ever take them away.
Under our Constitution, your rights are defined:
— You are promised that the trial of “all crimes, except in Cases of Impeachment, shall be by Jury”.
— You cannot “be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court”.
— Under the Fourth Amendment, you are “secure in [your] persons, houses, papers, and effects, against unreasonable searches and seizures”. This right “shall not be violated, and no warrants shall issue, but upon probable cause”.
— Under the Fifth Amendment, you cannot be “held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury”.
— Under the Sixth Amendment, you have a right to a “speedy trail”.
— Under the 14th Amendment, “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”.
In my view, the Senate bill violates your basic rights, guaranteed to you by our Constitution. Rather than forcing the state to prove your guilt by a unanimous vote of a jury “beyond the shadow of a doubt”, this law allows you only one petition to a civilian court under a writ of habeas corpus, then allowing a military court to hold U.S. citizens by only a “preponderance of the evidence”.
The last time Congress enacted a law allowing the indefinite detention of U.S. citizens was during the McCarthy era. Passed over President Truman’s veto in 1950, the “Emergency Detention Act” authorized indefinite detention of Americans likely to commit espionage or sabotage. Fortunately, this authority was never used and President Nixon signed the repeal of this law in 1971. His repeal stated that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”.
The detention authority of the Senate bill would roll back decades of protections for U.S. citizens. While the U.S. military has and should keep the power to detain or even attack Americans serving in foreign armies or terrorist organizations overseas (like Anwar al Awlaki who fought the U.S. from a terrorist base in Yemen), the U.S. military should not be authorized to arrest and detain U.S. citizens based on activity conducted in the United States. That is the mission of the FBI, Department of Homeland Security, state and local law enforcement. Americans who are arrested should never lose their constitutional rights until they are convicted in a civilian court by a jury of their peers.
In the Senate, I voted for three amendments that strike or limit the scope of these provisions. Amendment 1107, introduced by Senator Mark Udall (D-CO), would have struck Sections 1031 and 1032, but it was defeated by a vote of 38 to 60. I also supported Senator Diane Feinstein’s (D-CA) amendment 1125 that would have eliminated the military’s power to arrest and detain U.S. citizens inside America. This amendment was defeated by a vote of 45 to 55. In the end, the Senate adopted another amendment offered by Senator Feinstein, stating that this bill does not expand authority to apprehend and detain U.S. citizens in the United States – a thin cover for our basic rights.
President Obama said that he would veto this legislation if it contains overly broad powers for the U.S. military to arrest U.S. citizens on U.S. soil. He is right on this issue and I will support his veto on this question.
The remainder of this long piece of legislation, the National Defense Authorization Act, is beneficial for the country. The bill provides a pay increase for Americans in uniform. It fully funds special operations forces across the world. It also helps clean up troubled and wasteful defense construction and procurement programs. The bill also contains the Menendez-Kirk amendment, passed by a vote of 100-0, to impose crippling sanctions on the Central Bank of Iran in an effort to stop Iran from acquiring nuclear weapons. Therefore, I voted to move the bill forward to a House-Senate conference, secure in knowing that the President will be able to strike the provisions I outlined on our rights while advancing the provisions I outlined just above.
Thank you for taking the time to contact me on this issue. Please feel free to contact me at (312) 886-3506 or online athttp://kirk.senate.gov if you have any questions or concerns before Congress or the federal government. It is an honor to serve you in the Senate.
Very truly yours,