Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, how much time do I have remaining?

Mrs. FEINSTEIN. Thank you very much.

Mrs. FEINSTEIN. Not on my time. On the Senator's time.

Mrs. FEINSTEIN. Madam President, I wonder if I might take a few minutes to make a couple statements.

Mrs. FEINSTEIN. Shall I go first?

Mrs. FEINSTEIN. Mr. President, I wish to explain what has happened this long afternoon. Originally some of us, namely Senators Leahy, Durbin, Udall of Colorado, Kirk, Lee, Harkin, Webb, Wyden, Merkley, and myself, realized that there was a fundamental flaw in section 1031 of the bill. There is a difference of opinion as to whether there is this a fundamental flaw. We believe the current bill essentially updates and restates the authorization for use of military force that was passed on September 18, 2001. Despite my support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this. The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until ``the end of the hostilities'' which, in my view, is indefinitely. Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court's Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion's express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities. So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side's view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side's interpretation, but leaves it to the courts to decide. Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read: On page 360, between lines 21 and 22, insert the following: Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States. I believe this meets the concerns of the leadership of the committee and this is presented as an alternative. There are those of us who would like to vote for the original amendment, which I intend to do, as well as for this modifying amendment. They will appear before you as a side-by-side, so everyone will have the chance to vote yea or nay on the original or yea or nay on the compromise. As I said, I would urge that we vote yes on both. This is not going to be the world as we see it postvote, but I will tell you this, the chairman and the ranking member have agreed that the modified language presented in the second vote will be contained in the conference; that they will do everything they can to contain this language in the conference. In the original amendment--my original amendment--which affects only U.S. citizens, that is not the case. They are likely to drop that amendment. So I wish to make the point by voting for both, and I would hope others would do the same. I think a lot has been gained. I think a clear understanding has been gained of the problems inherent in the original bill. I think Members came to the conclusion that they did not want to change present law and they wanted to extend this preservation of current law not only to citizens but to legal resident aliens as well as any other persons arrested in the United States. That would mean they could not be held without charge and without trial. So the law would remain the same as it is today and has been practiced for the last 10 years. I actually believe it is easy to say either my way or the highway. I want to get something done. I want to be able to assure people in the United States that their rights under American law are protected. The compromise amendment, which is the second amendment we will be voting on, does that. It provides the assurance that the law will remain the same and will not affect the right of charge and the right of trial of any U.S. citizen, any lawful legal alien or any other person in the United States. We have the commitment by both the chairman and the ranking member that they will defend that in conference. There are those who say I wish to just vote for the original amendment. That is fine. I am not sure it will pass. I don't know whether it will pass, but in my judgment, the modification is eminently suitable to accomplish the task at hand and has the added guarantee of the support of the chairman, the ranking member in a conference committee with the House, which I think is worth a great deal. They have given their word, and I believe they will keep it. This Record will reflect that word. Amendment No. 1456 I call up my amendment No. 1456, which is the modification.

Mrs. FEINSTEIN. I ask unanimous consent that the reading of the amendment be dispensed with. There are others who wish to speak.

Mrs. FEINSTEIN. Madam President, I rise to ask my colleagues to support amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This amendment is cosponsored by Senators Leahy, Durbin, Udall, Kirk, Lee, Harkin and Webb. This is a very simple amendment. It adds only one word--the word ``abroad''--to section 1032 of the underlying bill. I strongly believe if it is not broke, do not fix it. The ability to have maximum flexibility in the United States is very important, and I totally support the Executive having that flexibility. This bill creates a presumption that members or parts of al-Qaida or associated forces will be held in the military system. That is what concerns me because the military system has not produced very well over the last 10 years. I want to take a moment to contrast some cases. On this chart, we have sentences--five of them from military commissions and five or six from Federal courts. The Federal courts have actually convicted over the last 10, 11 years not 300 people but 400 people. Military commissions are limited to some six convictions. Let's take a look at what they are. A very famous one is Salim Hamdan because he brought a Supreme Court case. He was bin Laden's driver. He was acquitted of conspiracy and only convicted of material support for terrorism. He received a 5-month sentence by the military commission and was sent back to his home in Yemen to serve the time before being released in January of 2009. No. 2: David Hicks entered into a plea on material support for terrorism and was given a 9-month sentence, mostly served back home in Australia. Omar Khadr pled guilty in exchange of an 8-year sentence, but he will likely be transferred to a Canadian prison. Ibrahim Ahmed Mahmoud al-Qosi pled guilty to conspiracy and material support to terrorism. His final sentence was 2 years pursuant to a plea deal. Noor Uthman Muhammed pled guilty to conspiracy and material support to terrorism. His final sentence will be less than 3 years pursuant to his plea agreement. Ali Hamza al-Bahlul received a life sentence after he boycotted the entire commission process. On the other hand, you have sentences from the Federal courts. You have Richard Reid, the Shoe Bomber--life in prison. ``Blind Sheik'' Omar Abdel Rahman--life in prison for the plot to bomb New York City. Twentieth Hijacker Zacarias Moussaoui--life in prison. Ramzi Yousef--life in prison for the 1993 World Trade Center bombing and the Manila Air plot. Umar Farouk Abdulmutallab--probably life in prison; will be sentenced in January 2012. Najibullah Zazi--potential life in prison. This is the man, with conspirators, who was going to bomb the New York subway. There is definitive evidence that is irrefutable that the Federal courts have done a much better job than the military commissions. Why this constant press, that if it is not broke we are going to fix it anyway, I do not understand. Why the constant push to put people in military custody rather than provide the flexibility so that evidence can be evaluated quickly? This person will get life in a Federal court versus an inability or a problem in a military commission or vice versa. I think the Executive should have that. I think the last 10 years have clearly shown that this country is safer than it has ever been. Terrorists are behind bars where they belong and plots have been thwarted, so the system is working. This amendment would make clear that under section 1032, U.S. Armed Forces are only required to hold a suspected terrorist in military custody when he is captured abroad. All the amendment does is add one word--that is the word ``abroad''--to make clear that the military will not be roaming our streets looking for suspected terrorists. The amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States. The administration has threatened to veto this bill, and has said: [It] strongly objects to the military custody provision of section 1032 [because it] would tie the hands of our intelligence and law enforcement professionals. Perhaps, most importantly, addressing the issue of this amendment specifically, on November 15, Defense Secretary Leon Panetta wrote this: The failure of the revised text to clarify that section 1032 applies to individuals captured abroad . . . may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States. The Director of National Intelligence, Jim Clapper, also wrote a letter on November 23, to say that he opposes the detainee provisions of this bill because they could--and I quote--``restrict the ability of our nation's intelligence professionals to acquire valuable intelligence and prevent future terrorist attacks.'' The administration suggested this change to the Armed Services Committee, but it was rejected. So the administration has had to threaten a veto on the bill. Who knows whether they will. I certainly do not know. This amendment limiting mandatory military custody to detainees outside the United States is a major improvement to the bill, and I ask my colleagues to support it. I have a very hard time because I have watched detainees carefully as part of the Senate Intelligence Committee, and we are doing a study on the detention and treatment of high-value detainees. This has been going on for 2 years now. It is going to be a 4,000-page document, and it is going to be classified. But it will document what was actually done with each of the high-value detainees and what was learned from them. It shows some very interesting things. But the upshot of all of this is that we should keep military custody to people arrested abroad and have the wide option in this country, which is the case now, and not mandate--mandate--that military custody and military commission trial must be for everyone arrested in the United States. You will hear that anyone who comes to the United States who carries out a criminal act, a terrorist act under the laws of war, should be subject to military custody. The problem is, 10 years of experience has not worked. How many years' experience do we need? How many sentences-- six cases--and this is all there is in 10 years. I know the other side got very upset when Abdulmutallab was Mirandized. The fact of the matter is, every belief is Abdulmutallab is going to do a life sentence in a Federal prison, put away somewhere in a place where he cannot escape and where the treatment is very serious. I have, again, a hard time knowing why if it is not broke we need to fix it, and why we need to subject everybody who might be arrested in this country to a record that is like this: 5-month sentence, 9-month sentence, 8-year sentence, 2-year sentence, 3 years pursuant to a plea agreement, and one life sentence, when you have 400 cases that have been disposed of in a prompt way in a Federal court, who are serving long sentences in Federal prison. I wish to hold the remainder of my time and have an opportunity to respond to the distinguished chairman and ranking member.

Mrs. FEINSTEIN. If that is possible, that would be helpful. But it is whatever Senators want. OK. All right.

Mrs. FEINSTEIN. Yes. My understanding is the House chairman only has until 3 o'clock, but I anticipate we will take all that time. So I can't change that.

Mrs. FEINSTEIN. Yes.

Mrs. FEINSTEIN. That is correct.

Mrs. FEINSTEIN. I do. I have a four corners meeting on the Energy and Water appropriations bill. That is my problem. So the later it is, the better it is for me.

Mrs. FEINSTEIN. I appreciate it. I may well use it. Madam President, I object to the statement just made that this will make the United States of American less safe. Ten years of experience has shown it has not. Plot after plot after plot has been interrupted. I have served on the Intelligence Committee for 11 years now. We follow this closely. This country is much more safe because things have finally come together with the process that is working. The FBI has a national security division with 10,000 people. There are 56 FBI offices. The military does not have offices to make arrests around this country. This constant push that everything has to be militarized--they were wrong on Hamdi, they were wrong on Hamdan. And it keeps going. And that it is terrible to protect people's rights. I do not think that creates a safe country. This country is special because we have certain values, and due process of law is one of those values. So I object. I object to holding American citizens without trial. I do not believe that makes us more safe. I object to saying that everything is mandatory military commission and military custody if anyone from abroad commits a crime in this country. The administration has used the flexibility in a way that they have won every single time. There have been no failures. The Bush administration as well used the Federal courts without failure. They have gotten convictions. The military commissions have failed, essentially; 6 cases over 10, 11 years. I pointed out the sentences. So to say that what we are doing is to make this country less safe may be good for a 30-second sound bite, but it is not the truth. I yield the floor.

Mrs. FEINSTEIN. Would the Senator yield for a question?

Mrs. FEINSTEIN. Madam President, I wished to say with respect to Abdulmutallab, what was very new there was that an explosive had been invented that could go through a magnetometer without detection. It is, to my knowledge, the first time anyone came into the United States-- this young Nigerian from a very prominent Nigerian family--wearing a diaper that had enough of this PETN, this new explosive, to blow up the plane. He missed in detonation and it caught on fire and the fire was put out. There have been other incidents of trying to smuggle this PETN in cartridges of computers and they even had dogs going to the airport and they could not smell the explosive inside the computer cartridge. That was in Dubai. It is a very dangerous explosive. It is new, and it has been improved. It is something we need to be very wary of. I also wish to point out that there is a public safety exception to Miranda. We do not have to Mirandize someone or we could continue to question them, if there is a public safety risk. So Mirandizing an individual is not a point in this argument, in my view, because we can continue the interrogation. What is a point, in my argument, is that the FBI now has competence; that there is a group of special experts who can be flown to a place where someone is arrested and do initial interrogation. They are specifically trained and, to the best of my knowledge, they are effective at interrogating. My point is, the system is working, and we should keep it as it is. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I wonder if I might be able to make a few comments. This amendment is a compromise amendment. I think it is actually a very good amendment. I want to thank the chairman of the committee, the ranking member, and Senator Graham, who participated in a rather lengthy discussion, and this is the result. The amendment--I will read it. It says: Nothing in this section shall be construed to affect existing law or authority relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States. There is a commitment from both the chairman and the ranking member and Senator Graham that they will defend this amendment in conference. So I hope everyone will vote for it because essentially it just supports present law, whether one supports the broad interpretation of present law, or one supports a more narrow interpretation of present law. There is no change in law.

Mrs. FEINSTEIN. I ask for the yeas and nays.

Mrs. FEINSTEIN. Mr. President, I rise to respond to a colloquy yesterday that occurred between Senators Ayotte, Lieberman, and Graham regarding amendment No. 1068 offered by Senator Ayotte to the Defense authorization bill. Senator Ayotte's amendment would eliminate measures that provide our interrogators with the guidance and clarity they need to effectively solicit actionable intelligence while upholding American values. In doing so, the amendment would override the better judgment of our military and intelligence professionals in a manner that will harm, not improve, our short- and long-term security. Yesterday, Senator Lieberman said on the Senate floor that he wants prisoners taken captive by the United States to be ``terrified about what is going to happen to them while in American custody.'' He also said he wants ``the terror they inflict on others to be felt by them.'' I believe that such statements are antithetical to fundamental American values. I firmly believe that America will not and cannot lower itself to the level of terrorists. To do so would be to abandon our most cherished principles and what our country stands for. There was also discussion of abuses at Abu Ghraib, which diminished America's standing and outraged the American public. As chairman of the Select Committee on Intelligence, I can say that we are nearing the completion a comprehensive review of the CIA's former interrogation and detention program, and I can assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody went beyond a few isolated incidents at Abu Ghraib. Moreover, the abuse stemmed not from the isolated acts of a few bad apples but from fact that the line was blurred between what is permissible and impermissible conduct, putting U.S. personnel in an untenable position with their superiors and the law. That is why Congress and the executive branch subsequently acted to provide our intelligence and military professionals with the clarity and guidance they need to effectively carry out their missions. And that is where the September, 2006 Army Field Manual comes in. However, Senator Ayotte's amendment would require the executive branch to adopt a classified interrogation annex to the Army Field Manual, a concept that even the Bush administration rejected outright in 2006. Senator Ayotte argued that the United States needs secret and undisclosed interrogation measures to successfully interrogate terrorists and gain actionable intelligence. However, our intelligence, military, and law enforcement professionals, who actually interrogate terrorists as part of their jobs, universally disagree. They believe that with the Army Field Manual as it currently is written, they have the tools needed to obtain actionable intelligence from U.S. detainees. Further, in 2009, after an extensive review, the intelligence community unanimously asserted that it had all the guidance and tools it needed to conduct effective interrogations. The Special Task Force on Interrogations--which included representatives from the CIA, Defense Department, the Office of the Director of Intelligence, and others-- concluded that ``no additional or different guidance was necessary.'' Since 2009, the interagency High Value Detainee Interrogation Group Interrogation Group has assured the Senate Intelligence Committee that it has all the authority it needs to effectively gain actionable intelligence.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the distinguished manager of the bill, and I say to the distinguished senior Senator from Illinois, who is here, I will try to be relatively brief. But I would also say that seldom do we get an opportunity on the floor of the Senate to debate what is fundamental to this American democracy. In a sense, I am pleased this issue has now been aired publicly because I think we can address it directly. Senator Durbin, I also want to thank your colleague, the junior Senator from Illinois, Senator Kirk, for his cosponsorship of this amendment. The fact of the matter is, the original draft of this defense bill had this language in it: The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place in the United States except to the extent permitted by the Constitution of the United States. That was removed from the bill. Essentially, what we are trying to do is put back in that you cannot indefinitely detain a citizen--just a citizen--of the United States without trial. Due process is a basic right of this democracy. It is given to us because we are citizens of the United States. And due process requires that we not authorize indefinite detention of our citizens. Where I profoundly disagree with the very distinguished chairman and ranking member of the Armed Services Committee is by saying that Ex parte Quirin established the law for U.S. citizens in this area that still holds. It does not. I went to the Hamdi opinion, and I wish to read some of the plurality opinion as written by Justice O'Connor. This first quote is from page 23 of her opinion. As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. Continuing on page 24: We reaffirm today the fundamental nature of a citizen's right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails. It then goes on, referring to the Hamdi case, on page 26: We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government's factual assertions before a neutral decisionmaker. Then to quote from Justice Scalia's opinion, which is important commentary on the 1942 case Ex parte Quirin, he says: The government argues that our more recent jurisprudence ratifies its indefinite imprisonment of a citizen within the territorial jurisdiction of Federal courts. It places primary reliance on Ex parte Quirin, a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a U.S. citizen. Justice Scalia concludes: This case was not this Court's finest hour. Mr. President, the difference today is that we as a Congress are being asked, for the first time certainly since I have been in this body--and I believe since the senior Senator from Illinois has been in this body--to affirmatively authorize that an American citizen can be picked up and held indefinitely without being charged or tried. That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War II. It took that long, until 1971, when Richard Nixon signed the Non-Detention Act, and that law has never been violated. The Quirin case was not about whether a U.S. citizen captured during wartime could be held indefinitely, but rather whether such an individual could be held in detention pending trial by military commission. The recent case of an American put into military custody, of course, was Jose Padilla, and there was a good deal of controversy over the years about his case. He was ultimately transferred out of military custody, tried and convicted in a civilian court. What we are talking about here--and I am very pleased Senator Kirk and Senator Lee have joined us as cosponsors in this--is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever. The hypothetical example that has been offered by the Senator from Arizona, the ranking member of the committee, is: Would we want someone who is an American--who is planning to kill our people, bomb our buildings--not to be held indefinitely under the laws of war? I believe it is a different situation when it comes to American citizens. What if it is an innocent American we are talking about? What if it is someone who was in the wrong place at the wrong time? The beauty of our Constitution and our law is it gives every citizen the right of review--review by a court, and this is what the Hamdi decision is all about. The defense bill on the floor, as written, would take us a step backward. The bill, as written, would say an American citizen can be picked up, can be held for the length of hostilities--is that 5 years, 10 years, 15 years, 20 years, 25 years, 30 years--without a trial. I say that is wrong. I say that is not the way this democracy was set up. And I also say that is totally unnecessary because our federal courts work well to prosecute terrorists. We can go back to the Shoe Bomber, as a case in point. We can go back to Abdulmutallab as a case in point. We can go back to the record of the Federal courts prosecuting over 400 terrorists since 9/ 11. I want to thank Senator Durbin for his interest in this issue and his cosponsorship of this amendment. It is very much appreciated. I don't know whether we can win this, but I think it is very important that we try and I know we are getting more and more support as people learn more about what this bill does. I think it is very important that we build a record in this body, because I have no doubt this is going to be litigated. I hope we are successful with this amendment. I hope we can protect the rights of Americans. Mr. President, as we have occasion to look at people in Guantanamo, we know there are people there who were in the wrong place at the wrong time. If they are going to be held forever, that is a mistake, and we don't want the same thing to happen to American citizens in this country. This is another example of how we are over-militarizing things that aren't broken. As I have said previously here on the floor, I don't see a need for the military to go around arresting Americans. The national security division of the FBI now has some 10,000 people. They have 56 field local offices with special agents who are well equipped to arrest terrorists and also interrogate them. Certainly the Justice Department is equipped to prosecute terrorists in Federal criminal court. The conviction rate and the long sentences achieved shows their success. I am hopeful we will be able to pass this amendment and change the bill to reflect that Americans are protected from permanent detention without trial. That is all we are trying to do. I thank the Senator from Illinois, I thank the Chair, and I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mrs. FEINSTEIN. Mr. President, if I understand the procedure, it is now appropriate for me to speak on my pending amendments. I will not offer my two amendments for a vote now, but I would like to take the opportunity to speak about them at this time. I trust that is in order.

Mrs. FEINSTEIN. Mr. President, I rise to express my continued opposition to the detention provisions in the Defense authorization bill. I was on the Intelligence Committee prior to 9/11, and I have watched the transition since that time. I have watched America--to use a phrase--get its act together, and I am proud of where this country stands at this time with the procedures, the interrogation techniques, the custody issues, and the prosecutions that have been successful in the last 10 years. In my judgment, this country is safer now than we were before 9/11. Before the recess, I laid out my views on why the detainee provisions in the Armed Services bill were detrimental to national security because they reduce the President's flexibility to make decisions on how best to detain and potentially interrogate and prosecute suspected terrorists. Today, I would like to speak to the two amendments I have filed, and I will describe them in a moment. Let me also reference two letters in opposition to the detention provisions in the underlying bill: one written to me from the Director of National Intelligence, James Clapper, and the second written yesterday to Chairman Levin from Bob Mueller, the Director of the FBI. These letters are in addition to the Statement of Administrative Policy, which includes a veto threat to the detention provisions and the letter from the Secretary of Defense, Leon Panetta, both of which were inserted into the Record before the recess. So I note that the provisions in the bill we are considering are opposed by the White House, by the Secretary of Defense, the Director of National Intelligence, and the Director of the FBI. These top national security officials are all concerned that the bill reduces the administration's flexibility to combat terrorism, both at home and abroad, and I would agree with that. I will ask at the appropriate time for a vote on amendment No. 1125, which will limit mandatory military custody to terrorists captured outside the United States. This is a very simple amendment that only adds one word, ``abroad,'' to section 1032 of the underlying bill. Currently, this bill creates a presumption that members or parts of al-Qaida or ``associated forces'' will be held in the military detention system, and I disagree with that approach. I believe the President should have the flexibility to hold captured terrorists in the military or the criminal justice systems, and the decision of which system to use should be made based on the individual facts and evidence of each case. Putting aside that general view, I am very concerned that creating a presumption for military custody--which this bill does--and requiring a cumbersome waiver process will jeopardize counterterrorism cases and intelligence gathering. This concern is not only mine, it has been raised by the White House, by Secretary Panetta, and very directly by Director Mueller in his letter. So my amendment would clarify the situation and remove the confusion and delay that I believe this bill will cause. My amendment will make clear that under section 1032 of this bill the U.S. Armed Forces are only required to hold a suspected terrorist in military custody when that individual is captured abroad. All that amendment does is add that one word, ``abroad,'' to make clear that the military will not be roaming our streets looking for suspected terrorists. My amendment does not remove the President's ability to use the option of military detention or prosecution inside the United States. My amendment makes clear that inside the United States there is no presumption for military custody. Inside the United States, a Customs agent or local law enforcement officer could follow his or her standard process and turn a suspected terrorist over to the FBI for handling without having to worry about whether a waiver may apply or whether it is required. The FBI has changed. There are 56 field offices, there is a national security branch, and it is staffed with thousands of agents inside the United States. The FBI is well equipped to handle a terrorist inside the United States, but the Department of Defense is not. Listen to what Director Mueller wrote. He notes, and I quote: The legislation introduces a substantial element of uncertainty as to what procedures are to be followed at perhaps the most critical time in the development of an investigation. . . . Now, I understand that the chairman and ranking member of the Armed Services Committee have included a waiver and have required that the administration issue procedures to lay out how the mandatory military custody provision will be carried out. But the administration is telling us, with a unanimous voice from all its senior counterterrorism officials, that this provision is harmful and unnecessary. But we say Congress knows better. I don't believe we do know better, and I think not to listen to those who are really responsible to carry out these missions in what is a very difficult field today, based on a careful assessment of national security, is a mistake. The administration has threatened to veto this bill and said it ``strongly objects to the military custody provision of section 1032'' in its official Statement of Administration Policy because it would, and I quote, ``tie the hands of our intelligence and law enforcement professionals.'' So here are the experts saying: Don't do this, it will tie our hands; and here is the political branch saying: We know better. If something had gone wrong, if there had been mistakes, if there hadn't been over 400 cases tried successfully in civilian Federal criminal courts in the last 10 years and 6 cases and a muffed history of military prosecution in these cases, I might agree. But the march is on here in Congress: militarize this thing from stem to stern. And I disagree with that. When something isn't broke, don't fix it. Mr. President, there are rapid reaction teams part of the HIG--or High-Value Interrogation Group--who can deploy on a moment's notice, who can rapidly assess a suspect, who can carry out a proper and effective interrogation, and the executive branch then has an opportunity to decide whether the facts and the evidence really are best suited for a Federal criminal prosecution in Article III courts, or the facts and the evidence are really best suited for a military commission prosecution. This flexibility is what we are taking away from the executive branch under the provisions in this bill. It was well practiced during the Bush Presidency, and it has been well practiced by the Obama Presidency. Virtually every national security professional connected to the handling of terrorists and the intelligence obtained from them says to change it would be a mistake. So I believe the amendment I am offering--limiting mandatory military custody to detainees outside the United States--is a major improvement to the underlying bill. It removes the uncertainty that will occur if military custody is required for detainees captured inside the United States. Frankly, I would prefer that the provision--section 1032--be struck in its entirety, as I don't believe we should be creating a presumption of military custody over the law enforcement route. That is not what this country is about. There is the posse comitatus law on the books. The military isn't supposed be roaming the streets of the United States. But if there is going to be this type of provision, it should at least do no harm to our ability to detain, interrogate, and prosecute terrorists. So I ask for my colleagues' support on this amendment. While I am on the Senate floor, I would like to speak briefly to the second amendment I have filed and on which I also seek a vote, since the Udall amendment has failed; that is, amendment No. 1126, which would prohibit U.S. citizens from being held in indefinite detention without trial or charge. As Members know, section 1031 of the underlying bill updates and restates the authorization for the use of military force that was passed on September 18, 2001, 10 years ago, 1 week after the attacks of 9/11. The provision updates the authority to detain terrorists who seek to harm the United States, an authority that I believe is consistent with the laws of armed conflict. However, I strongly believe that the U.S. Government should not have the ability to lock away its citizens for years, and perhaps decades, without charging them and providing a heightened level of due process. We shouldn't pick up citizens and incarcerate them for 10 or 15 or 20 years or until hostilities end--and no one knows when they will end--without giving them due process of law. So my amendment simply adds the following language to section 1031 of the underlying bill: The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of hostilities. It is hard for me to understand how any Member of this body wouldn't vote for this amendment because, without it, Congress is essentially authorizing the indefinite imprisonment of American citizens without charge or trial. As I said on the Senate floor previously, 40 years ago Congress passed the Non-Detention Act of 1971 that expressed the will of Congress and the President that America would never repeat the Japanese-American internment experience--something that I witnessed as a child up close and personal--and would never subject any other American to indefinite detention without charge or trial. In the 40 years since President Richard Nixon signed the Non-Detention Act into law, Congress has never made an exception to it. A key issue in this bill is that this is the Congress making an explicit exception that has never been made before by the Congress, and what we are saying is, it is OK to detain an American citizen without trial, ad infinitum. I don't think it is. I don't think that is what our Constitution is all about. Yet the provision in this bill would do just that. I ask unanimous consent to have printed in the Record a column published yesterday in the San Jose Mercury News of California from Floyd Mori.

Mrs. FEINSTEIN. I know Mr. Mori well. He is the national executive director of the Japanese American Citizens League, which is the oldest and largest Asian-American civil rights organization in the United States. The Japanese American Citizens League--or JACL as we would say--has been an active voice on the wrongful internment of Japanese Americans during World War II, and I believe it is worth listening to what they have observed from that painful history. The administration has threatened to veto this bill and said the following in its official Statement of Administration Policy: After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole series of legal questions that will distract from our efforts to protect the country. Yet by allowing the military to detain U.S. citizens indefinitely, Congress would be opening a great number of serious legal questions, in my judgment. This amendment would restore the language that was in an earlier version of this bill that would have established a similar ban on the indefinite detention of U.S. citizens. It is also consistent with the way we have conducted the war on terror over the past 10 years. In cases where the United States has detained American citizens, including John Walker Lindh and Jose Padilla, they have eventually been transitioned from indefinite detention to the criminal justice system, and both have been convicted and are serving long prison sentences. John Walker Lindh pleaded guilty to terrorism charges and was given a 20-year sentence, and Jose Padilla was convicted of terrorism conspiracy and sentenced to a 17-year prison sentence. So I believe this amendment is consistent with past practice and with traditional U.S. values of due process. We are not a nation that locks up its citizens without charge, prosecution, and conviction. My amendment reflects that view, I believe in that view, and I hope this body does as well. So I urge its adoption. Mr. President, in conclusion, I ask my colleagues' support on these two amendments because I believe they will improve the legislation. I yield the floor, and I suggest the absence of a quorum.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to speak in support of the Cut Energy Bills at Home Act, which Senator Snowe, Senator Bingaman and I have introduced. It has been a pleasure to work again with Senators Snowe and Bingaman on an important piece of energy legislation. We have written this bill in a fully cooperative process, and my colleagues have been especially accommodating of changes requested by California's experts; I thank my colleagues for their efforts. This legislation would put the construction industry back to work by creating a homeowner tax credit for home renovations that increase the energy efficiency of the home by at least 20 percent. The tax credit would increase in size with every 5 percent in additional energy efficiency improvement achieved. Homeowners who improved the efficiency of their home by more than 50 percent will qualify for a maximum credit of $5,000. This legislation helps address the continued high unemployment in the construction sector while making a long-term investment in America's building infrastructure. The construction industry has the highest unemployment rate of any sector nationally, according to the Bureau of Labor Statistics. The current residential building stock exceeds demand, making a rapid recovery in new housing starts unlikely. According to the Census Bureau, 14.3 percent of the housing units in the United States in the second quarter of 2011 were vacant, even as prices continue to drop. Thus the construction industry needs jobs, but artificially stimulating construction of new homes would exacerbate a situation of oversupply and depress home prices further. Our Nation's buildings also need the upgrade. Buildings account for about 40 percent of the U.S. energy appetite, as well as 40 percent of its carbon dioxide emissions, according to the Department of Energy. However, the consulting firm McKinsey and Company has found that improving building energy efficiency is one of the most cost effective ways to reduce greenhouse gas emissions. Since 1974, California has used mandates, regulations and incentives to hold its per capita energy consumption essentially constant, while energy use per-person for the United States overall has jumped 50 percent. This legislation provides a solution by stimulating the renovation of existing homes. This is a jobs bill that provides incentives to reward energy efficient renovations that will create jobs in the construction sector, avoid increasing the supply of housing beyond demand, decrease energy use and reduce pollution, and expand the market for efficient technology and products. This bill would create the first tax incentive for energy efficiency home renovation based on the energy performance of the home rather than the cost of the equipment. This concept, which Senator Snowe and I first proposed in 2007 as part of the Extend Act, is recommended by most energy efficiency experts. Current policy allow homeowners to claim credits for the purchase of energy efficient insulation, windows, doors, heaters, air conditioners and water heaters. This approach is very expensive, largely due to claims filed for windows. By restructuring the credit to apply to whole-home energy renovations that reward energy efficiency performance instead of the cost of equipment, this proposal has the potential to increase effectiveness while substantially lowering costs. The legislation also includes provisions to ensure effectiveness and prevent abuse. The work must be done by a contractor who must sign an affidavit certifying the work was done and submit photographs of the work. The contractor must use certified, computer-based energy efficiency measurement tools. The credit would be limited to renovations of primary residences that do not increase the size of the home, and the credit would be capped at no more than 30 percent of the cost of renovation, to prevent homeowners from making large claims for relatively inexpensive renovations. As a tax credit, all claims would also be subject to IRS audits. The bill is supported by the California Energy Commission, the Alliance to Save Energy, Efficiency First, the American Council for an Energy Efficient Economy and the Natural Resource Defense Council. By offering incentives for energy efficient renovations, this bill helps create jobs in California's ailing construction sector while at the same time decreasing energy use and pollution. This sort of investment, putting Americans back to work while leaving behind lasting improvements, is the type of legislation on which Congress should be spending time.