Levin Statement on Feinstein Amendment to National Defense Authorization Act

Senate Amendment #3018

Friday, November 30, 2012

WASHINGTON – The Senate on Thursday approved by a 67-29 vote an amendment offered by Sen. Diane Feinstein to the National Defense Authorization Act for Fiscal Year 2013. The Feinstein amendment addresses the question of detention of U.S. citizens captured inside the United States and under what conditions they can be considered enemy combatants under a congressional authorization of the use of military force. Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, voted for the amendment.

In his Senate floor statement in support of the Feinstein amendment, Levin said that the Feinstein amendment does not prohibit the military detention of U.S. citizens who are captured or apprehended inside the United States, if such detention is expressly authorized by law – a major difference from the amendment that Senator Feinstein offered last year.  In Levin’s view, the current Authorization for Use of Military Force provides such express authorization when we are attacked. 

Levin said: “I base this view on the fact that the Supreme Court has said so. In the Hamdi case, the Supreme Court considered the relationship between the current Authorization for Use of Military Force and the Non-Detention Act, which prohibits the detention of a U.S. citizen, except where authorized by an Act of Congress. The Supreme Court held in Hamdi that this statute does not preclude the detention of U.S. citizens on the battlefield in Afghanistan, because the 2001 Authorization for Use of Military Force – and I am quoting the Supreme Court – ‘is explicit congressional authorization for the detention of individuals’ in such circumstances.’ ” 

The same reasoning, Levin said, would apply in the case of a military response to an attack by enemy forces in the United States.

The full text of Levin’s Senate floor statement is below:

“Mr. President, the Feinstein amendment provides that no authorization for the use of military force may be construed to authorize the detention of U.S. citizens or lawful resident aliens who are captured inside the United States unless – and this is a big “unless” – an Act of Congress expressly authorizes such detention. 

“As I read the amendment, it says that the military detention of U.S. citizens may be authorized in accordance with the law of war, as long as this action is expressly authorized by Congress.  Further, the amendment’s requirement for express authorization applies only to the detention of U.S. citizens who are captured inside the United States, so no such express authorization would be required for detention of a U.S. citizen in the course of military operations overseas.

“I believe that it is appropriate that Congress focus on the issue of military detention at the time that they authorize the use of military force, as would be required by the Feinstein amendment.  As the Supreme Court has stated, detention is a “fundamental and accepted incident” to armed conflict.  Without such authority, our armed forces could be put in the untenable position of being able to shoot to kill, but not to capture and detain, enemy forces.

“As to the ongoing conflict, I believe that the 2001 Authorization for Use of Military Force (AUMF) authorized the detention of U.S. citizens when appropriate in accordance with the laws of war.  Now, I base this view on the fact that the Supreme Court has said so. 

“In the Hamdi case, the Supreme Court considered the relationship between the AUMF and the Non-Detention Act, which prohibits the detention of a U.S. citizen, except where authorized by an Act of Congress.  The Supreme Court held in Hamdi that this statute does not preclude the detention of U.S. citizens on the battlefield in Afghanistan, because the 2001 Authorization for Use of Military Force – and I am quoting the Supreme Court -- “is explicit congressional authorization for the detention of individuals” in such circumstances.  The Court explained that such detention “is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use” in the AUMF.  In other words, the Supreme Court has already concluded that the authorization to use necessary and appropriate force is an explicit authorization to detain enemy combatants in accordance with the law of war, and that meets the test of the Feinstein amendment.

“Any other conclusion would lead to absurd results, under which we would tie the hands of our Armed Forces even in the face of an actual invasion.  For example, if a group of terrorists were to approach one of our Navy bases in boats loaded with bombs, our sailors protecting that base would be in the untenable position of being able to shoot to kill, but not to capture, the enemy forces if Hamdi did not reach the conclusion that it did.  Similarly, in the unthinkable event that we were to experience another 9/11-type attack, our military would be in the untenable position of having the authority to shoot down the hijacked aircraft, but not to force them to land and capture the enemy hijackers.  And of course, we could not expect our military to inquire whether any of the enemy force were American citizens before deciding on the level of force to be applied.  As the Supreme Court explained in its Hamdi decision, “the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war’” and a “fundamental and accepted incident to war.” 

“What the Supreme Court said in Hamdi is explicit in the AUMF – in the 2001 Authorization for Use of Military Force – is that it is a part of the core law of war for our military to be able to capture and detain those who join enemy forces at a time of war an plan or participate in attacks against us.  This core authority to use less than lethal force rather than lethal force in appropriate circumstance must be available to our military whenever and wherever it engages with the enemy.

“Now again, Senator Feinstein’s amendment does not prohibit the military detention of U.S. citizens who are captured or apprehended inside the United States, if it is expressly authorized by law – which I read the statute authorizing the use of military force itself, or some other Act of Congress.  Now, this is a major difference from the amendment that Senator Feinstein offered last year, which included no exception for congressional authorization.

“This new approach is appropriate, because I believe Congress ought to address the issue of detention of U.S. citizens captured inside the United States at the time that we authorize the use of force.”