“NO” on Smith-Amash Amendment
Today, the House will vote on the Smith-Amash Amendment to the National Defense Authorization Act (H.R.4310). The amendment would require the President to send all al Qaeda terrorists captured in the United States immediately to federal court for prosecution. It thus requires the government to Mirandize suspects and prohibits counterterrorism professionals from lawfully interrogating the enemy.
According to former national security officials, including two former US Attorneys General, the amendment would reward “terrorists with greater rights for making it to the United States and would actually incentivize them to come to our shores, or to recruit from within the United States, where they pose the greatest risk to the American people. Such a result is perverse.”
The creation of such a “perverse” incentive stems from a misconception on the scope of section 1021 of last year’s NDAA. Al Qaeda terrorist, regardless of citizenship, captured in the US, have the constitutional writ of habeas corpus to challenge their detention. In addition, the Supreme Court has ruled, “[a]bsent suspension, the writ of habeas corpus remains available to every individual detained within the United States.”
The Smith-Amash Amendment does not “fix” anything, but rather it partially disarms the commander in chief by eliminating the possibility of treating captured terrorists as enemy combatants and lawfully interrogating them. This denies the Commander-in-Chief the flexibility all Presidents have had during war time at exactly the same time al-Qaeda is actively recruiting Westerners to carry out a terrorist attack on American soil.
Heritage Action opposes the Smith-Amash Amendment and will include it as a key vote on our scorecard.