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74–064 PDF 2012

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 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

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 

(1) 

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. 
2 

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 
3 

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 sab-
4 

otaging 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 
5 

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 some-
6 

thing.’’ 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 
7 

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 
8 

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 clearstatement 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. 
9 

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 
10 

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 
11 

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. 
12 

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 
13 

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 thirdgeneration 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 
14 

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. 
15 

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. 
16 

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 
17 

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. 
18 

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. 
19 

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 
20 

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. 
21 

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 signoff 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 consid-
22 

ering 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 
23 

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—— 
24 

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? 
25 

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 
26 

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? 
27 

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. 
28 

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’sland. 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 rea-
29 

soned 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. 
30 

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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