Don’t Be Fooled by New NDAA Detention Amendment

ACLU, By Chris Anders, November 29

The Senate is once again debating the National Defense Authorization Act (NDAA), and is within a day or two of voting yet again on the issue of indefinite detention without charge or trial in the United States itself.

Last year, Congress passed the NDAA and made permanent very broad authority for the military to throw civilians into prison without charge or trial. While military detention without charge or trial is illegal in the United States, some key senators urged that even American citizens and others picked up in the United States could be detained under NDAA.

They did not succeed. The NDAA that was signed into law on New Year’s Eve last year was bad enough, but it did not authorize military detention within the United States. Some in Congress now want to have a second crack at it-some to make it better and some to make it worse.

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  • Will Congress End Indefinite Detention of Americans?

    Mother Jones, By Adam Serwer, November 29

    Will Congress prevent American citizens from being subject to indefinite military detention? A bipartisan group of senators have crafted an amendment to the latest defense bill that they believe will do exactly that.

    “The federal government experimented with indefinite detention of United States citizens during World War II, a mistake we now recognize as a betrayal of our core values,” said Senator Dianne Feinstein (D-Calif) Wednesday while introducing the amendment. “Let’s not repeat it.” Feinstein, who co-authored the amendment with Senator Mike Lee (R-Utah) has support not only from Senate Democrats Chris Coons (D-Del) Kirsten Gillibrand (D-NY) and Frank Lautenberg (D-NJ) but also Republican Senators Rand Paul, (R-Ky) Susan Collins (R-Maine) and Mark Kirk (R-Ill). “Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation’s great constitutional values,” Lee said. The amendment could be voted on as early as Thursday, but it’ll still have to survive the House, where the GOP majority has scuttled similar efforts to prevent indefinite detention of Americans.


    Not all civil liberties groups however, are supporting the effort. That’s because they think anyone on American soil should be given a trial if accused of a crime, given that the Constitution protects “persons,” rather than “citizens.” The Feinstein-Lee amendment is “inconsistent with the constitutional principle that basic due process applies to everyone in the US,” says ACLU legislative counsel Chris Anders. Not only that, but Anders worries that the amendment could be construed to actually imply that the government has the constitutional authority for such detention.

  • ACLU: Feinstein’s ‘indefinite detention’ ban may expand military role on U.S. soil

    Raw Story, By Steven C. Webster, December 4

    An amendment to the 2012 National Defense Authorization Act (NDAA) that bans the indefinite detention of American citizens and lawful permanent residents appears to be an improvement over last year’s bill, but according to the American Civil Liberties Union (ACLU) it could also do some harm.

    That’s because in addressing a fundamental concern civil liberties groups had with the 2011 NDAA, the language of Sen. Dianne Feinstein’s (D-CA) amendment — which passed Thursday by a vote of 67 to 29 — fails to also cover non-citizens and other immigrants. In doing so, ACLU senior legislative counsel Chris Anders told Raw Story that the amendment could actually establish a bad precedent because it does not explicitly ban the military from operating on U.S. soil.

    “The military can’t legally operate within the United States that way,” Anders said. “The Feinstein amendment may imply that the military has the right to act within the United States. There’s been a longstanding principle that the Constitution applies to all persons in the United States. We don’t divide up who gets rights by citizenship status. Nobody gets thrown under the bus in terms of due process in the United States.”

    The real problem, Anders explained, is that “nobody really knows” what this bill will do and how it will be interpreted, which is why both advocates and opponents of indefinite detention, like Sens. Lindsey Graham (R-SC) and Rand Paul (R-KY), voted for it. The confusion arises in a loophole Feinstein wrote into the amendment giving the military the right to detain Americans in the event that Congress authorizes such action.

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