House Armed Services Committee Ranking Member, Congressman Adam Smith, Republican Congressman Chris Gibson, and Senator Mark Udall, who serves on the Senate Select Committee on Intelligence and the Senate Armed Services Committee, introduced legislation to ensure that any individual detained on U.S. soil under the Authorization of Military Force (AUMF) has access to due process. The bills would repeal the provision in the National Defense Authorization Act of 2012 that requires mandatory military custody of any individual captured on U.S. soil and suspected of terrorism. Their bills aim to prevent the erosion of our civil liberties as guaranteed by the U.S. Constitution while strengthening our national security.  

“As we confront threats from violent extremist groups around the world, it is vitally important that the President and our military have the tools and resources they needs to ensure national security. In doing so, we must also ensure that we do not undermine the civil liberties that we cherish so deeply in this country,” said House Armed Services Committee Ranking Member Congressman Adam Smith. “Current law provides the President with the authority to indefinitely detain individuals apprehended in the United States – including citizens of the United States – without due process and with little independent review or oversight. While the President said he will not utilize this authority, future administrations might and it is a frightening amount of power to leave on the books and it is counter to the rights enshrined in the United States Constitution. We have an opportunity, through this year’s National Defense Authorization Act, to protect constitutional rights and roll back this authority.”

“This proposal upholds the due process protections granted under the Constitution and preserves the rights of Americans by guaranteeing that anyone arrested in the U.S. receive a charge and fair trial.  This legislation strengthens our national security while protecting the civil liberties that are the core of our cherished way of life,” said Gibson.

“Even as we work to strengthen our national security and use every tool available to keep Americans safe, we must never lose sight of our constitution. This legislation will ensure that Americans are not indefinitely detained by the military and that our nation does not undermine our most powerful weapon against those who mean us harm: our constitutional liberties,” Udall said. “President Obama has pledged not to do so, but this is only binding on his administration, but that won’t tie the hands of future administrations. The indefinite detention laws on the books now threaten to undo much of the progress the FBI and law enforcement have made to stop terrorists plotting in the United States and overseas, and it seems to make it more difficult to gather intelligence on stop domestic terror threats. The last thing we should be doing is preventing local, state and federal authorities from investigating and acting on threats to our safety.”   

Udall’s bill, the Due Process and Military Detention Amendments Act, and the Smith-Gibson companion bill in the House prohibit military commissions and indefinite detention for individuals in the United States and affirm that any trial proceedings have all the due process as provided for under the Constitution.  In addition, Udall hopes the bill will support the success of civilian law enforcement and federal courts in locking up suspected terrorists. More than 400 defendants charged with crimes related to international terrorism have been successfully convicted in the United States since Sept. 11, 2001, and more than 300 individuals are currently incarcerated in federal prisons within the United States.

Udall and Smith have led the push to undo the military-detention provisions enacted through the 2012 National Defense Authorization Act. The duo introduced similar legislation the previous session of Congress and wrote an op-ed for CNN Opinion about why the law undermines the U.S. Constitution.

Today, Congressman Smith voted against the Homeland Security Appropriations bill, which included an amendment offered by Steve King (R-IA) that would prevent Immigration and Customs Enforcement (ICE) funds from going to the continued implementation of the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) that protects DREAMers from deportation:
 
“I was extremely disappointed that Republicans passed an amendment today that targets hundreds of thousands of DREAMers who, through no fault of their own, were brought to this country as young children.  These children have lived in the United States for years as law-abiding individuals, however the amendment adopted by House Republicans today, draws no distinction between DREAMers and criminals posing security risks to our communities.  We need an enforcement policy that focuses our limited resources on enhancing public safety by targeting serious criminals, not DREAMers.”
 
In June 2012, Secretary Napolitano sent a memo to ICE prioritizing prosecutorial discretion so ICE could focus their resources on going after dangerous criminals rather than deporting law-abiding DREAMers.  This amendment would prohibit appropriated funds from finalizing, implementing, or enforcing this policy guidance.  By refusing to fund this policy guidance, House Republicans have placed a target on the backs of 800,000 DREAMers.