[Senate Hearing 112-383]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 112-383
 
    THE DUE PROCESS GUARANTEE ACT: BANNING INDEFINITE DETENTION OF 
                               AMERICANS

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 29, 2012

                               __________

                          Serial No. J-112-61

                               __________

         Printed for the use of the Committee on the Judiciary



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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

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     5
    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

                               WITNESSES

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 
  Louisiana......................................................    11
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 
  Grassley.......................................................    35
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:
    letter.......................................................    65
    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 
      files.)....................................................    69
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, 
  statement......................................................    85
Mukasey, Michael B., Attorney General and Mark Filip, Deputy 
  Attorney General, Washington, DC, January 19, 2009, joint 
  letter.........................................................    92
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 
                               AMERICANS

                              ----------                              


                      WEDNESDAY, FEBRUARY 29, 2012

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    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 
or trial.
    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 
the bill.
    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 
fundamental liberties.
    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 
the world.
    I yield first to Senator Grassley, as is our custom, and 
then to Senator Feinstein, who will take over as Chair of the 
Committee.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    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 
citizen.
    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 
the sentence.
    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 
terrorist attack?
    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 
Congress.
    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 
law.''
    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 
is true.
    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 
this bill.
    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 
repeat.
    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 
Congress.''
    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 
authorized.''
    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 
States persons.
    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 
not.
    Chairman Leahy. I agree, and I thank you and Senator Lee 
and others who have supported this. And I will now give you the 
gavel.
    Senator Feinstein. [Presiding.] Thank you. Thank you very 
much.
    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 
them.
    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 
Feinstein.
    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 
right.
    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 
our troops.
    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 
applicable laws.''
    We just heard a furtherance of that earlier in the 
testimony before this Committee and the statement from the 
President.
    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 
domestically.
    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 
never happen.
    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 
Garamendi.
    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.
    [Laughter.]
    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 
American citizens.
    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 
that.
    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 
States.
    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 
human rights.
    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.
    Stephen Vladeck.

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 
already mentioned.
    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 
rights.
    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 
our history.
    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 
with urgency.
    Finally, S. 2003 would create significant practical 
difficulties.
    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 
continued detention.
    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 
others.
    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 
accepted'' ?
    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 
criminal process.
    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 
activities.
    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 
military detention.
    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 
custody?
    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 
aliens.
    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 
investigation.
    You worked in the executive branch, Mr. Bradbury. How 
difficult would the sign-off process be as outlined in the 
procedures?
    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 
question?
    Senator Grassley. I will take advantage of that if nobody 
else objects.
    [Laughter.]
    Senator Franken. I was just asking if you wanted to. I did 
not say I would let you.
    [Laughter.]
    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 
here.
    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 
consideration.
    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 
into law.
    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 
Constitution guarantees.
    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.
    [Laughter.]
    Senator Franken. That is very generous of you, considering 
you are leaving.
    [Laughter.]
    Senator Franken. Well, I will just take a moment here 
because I do not like going over, and I just want to address 
this.
    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 
well.
    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 record.
    [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 
constitutionally problematic?
    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 
here.
    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 
suggested.
    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 
insanity.
    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 
effectively?
    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 
closely----
    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 
patterns here.
    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 
anything.
    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 
healthy evolution.
    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 
gathering intelligence.
    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 
intelligence gathering?
    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 
systems.
    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 
terrific.
    Senator Graham. To be continued.
    Senator Feinstein. And I always enjoy discussing it with 
you.
    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 
follow.] 

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