This is important. We spent about half a day on this floor discussing this with Senator Levin, with Senator McCain, in the cloakroom with Senators Lee and Paul, as well as with a whole host of staff both from the Armed Services Committee as well as the Intelligence and Judiciary Committees. Here is the conclusion: I, and many of my colleagues and legal scholars, believe neither the AUMF nor the provisions of the National Defense Authorization Act that we are considering today constitute such an express authorization to detain American citizens. As I previously mentioned, I sponsored compromise amendment No. 1456 to the Defense bill when it passed the Senate and that amendment has now become section 1021(e) of the conference report specifically to prevent misrepresentations from providing Congressional intent to support the detention of Americans. Ex parte Quirin is a 1942 Supreme Court case that upheld the jurisdiction of a U.S. military tribunal that tried several German saboteurs captured inside the United States during World War II and brought to stand trial before the hastily convened military tribunal. One of the saboteurs, Herbert Hans Haupt, was a U.S. citizen. However, the question at issue in Quirin was not whether a U.S. citizen captured inside the United States could be held indefinitely under the laws of war without trial, but rather, whether such an individual could be held in detention for a matter of weeks pending trial by military commission.…
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