WASHINGTON – Today, Senator Dianne Feinstein (D-CA) and Senator Mike Lee (R-UT) introduced an amendment to the National Defense Authorization Act (NDAA) that would protect American citizens from being indefinitely detained.  The amendment, which is cosponsored by several other Republican and Democratic senators, uses essentially the same language as the Due Process Guarantee Act, which Feinstein and Lee introduced last year.  The language of the amendment assures that no authorization to use military force, war declaration, or any similar authority would allow an American apprehended in the United States to be held without charge or trial.

During a discussion of their amendment on the Senate floor today, Sen. Lee said, “Senator Feinstein and I have worked closely together over the course of the past year to craft what we believe represents a very prudent course in protecting both our nation and our liberties at the same time. Security is important, and precisely because it's important, it must not be acquired at the expense of our individual liberty. It may well be said that government's most important basic responsibility is to protect the liberties of its citizens. Our nation has fought wars on American soil and around the world in defense of individual liberty.  And we must not sacrifice this most fundamental right in pursuit of greater security, especially when we can achieve security without compromising liberty. The Feinstein-Lee amendment does precisely that.

“We must stand behind our 225-year-old founding document as it's been amended to ensure our liberty isn't taken away from us, to give us a path to providing for our security without jeopardizing the freedom that our American citizens cherish so much and have fought so hard and so long to protect. Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's great constitutional values. This amendment, the Feinstein-Lee amendment, protects those values.”

On the floor, Sen. Feinstein explained, “I want to be very clear about what this amendment is and what it's not about. It's not about whether citizens such as [Yaser Esam] Hamdi and [Jose] 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? What about someone in the wrong place at the wrong time, with the wrong skin color?
 
“The beauty of our Constitution is that it gives everyone in the United States basic due process rights to a trial by a jury of their peers. That is what makes this nation great. As Justice Sandra Day O'Connor wrote for the plurality in Hamdi v. Rumsfeld, ‘[A]s critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.’

“The federal government experimented with indefinite detention of United States citizens during World War II, a mistake we now recognize as a betrayal of our core values. Let's not repeat it.”

The amendment is also sponsored by Senators Paul (R-KY), Coons (D-DE), Collins (R-ME), Lautenberg (D-NNJ), Gillibrand (D-NY), Kirk (R-IL), Tester (D-MT), Johnson (D-SD), Sanders (I-VT), Whitehouse (D-RI), Baucus (D-MT), and Heller (R-NV).

Transcript of the speech:

Mr. president, I rise today to speak in favor of the Feinstein-Lee amendment to the National Defense Authorization Act. At the outset I’d like to note that this amendment is the product of bipartisan discussion and collaboration on an issue that's important to all Americans. I’m pleased to have been a part of that process.

Senator Feinstein and I have worked closely together over the course of the past year to craft what we believe represents a very prudent course in protecting both our nation and our liberties at the same time. Security is important and precisely because it's important, it must not be acquired at the expense of our individual liberty. It may well be said that government's most important basic responsibility is to protect the liberties of its citizens. Our nation has fought wars on American soil and around the world in defense of individual liberty. And we must not sacrifice this most fundamental right in pursuit of greater security, especially when we can achieve security without compromising liberty.

The Feinstein-Lee Amendment does precisely that. It protects liberty by ensuring that no American will be deprived of due process. The Fifth Amendment states that no person shall be deprived of life, liberty, or property without due process of law. The Sixth Amendment likewise guarantees that individuals accused of a crime will have access to an attorney and access to a trial by a jury consisting of that person's peers. Our amendment protects those rights and provides an authorization to use military force, a declaration of war, or any similar authority shall not authorize detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States.

Now, it's important to note that the Supreme Court has never specifically held that an authorization for the use of military force somehow authorizes the indefinite detention of a U.S. citizen or a U.S. person apprehended within the United States. And I don't think that we should break new ground here. I don't think we should start opening that precedent and suggest that is somehow acceptable. The constitution does in fact require nothing less than traditional due process for all Americans apprehended within the United States. As Supreme Court justice Antonin Scalia has written, the gist of the due process clause was to force the government to follow common law procedures, traditionally deemed necessary before depriving a person of life, liberty or property. When a citizen was deprived of liberty because of alleged criminal conduct, those procedures typically required committal by a magistrate followed by indictment and trial. I understand and respect, of course, the fact that we live in perilous times. As Americans, we unfortunately have enemies, not only around the world but even within our own borders. This is unfortunate. This creates challenging times for us. and I hope and pray every day that we will be successful in fending off those who would harm us, those who hate our way of life and everything about us and will do everything in their power to destroy us and our liberty. But that does not, it cannot, it will not mean that we as Americans surrender our basic instinct to be free.

We must stand behind our 225-year-old founding document as it's been amended to ensure our liberty isn't taken away from us to give us a path to providing for our security without jeopardizing the freedom that our American citizens cherish so much and have fought so hard and so long to protect. Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's great constitutional values. This amendment, the Feinstein-Lee amendment, protects those values. I urge my colleagues to support it. Thank you, Mr. president.