Senate Votes to Ban Military Detentions of U.S. Citizens

The Senate last night approved Sen. Diane Feinstein's Amendment to the NDAA banning military detention of U.S. citizens and green card holders arrested on U.S. soil. It passed 67 to 29. 20 Republicans joined the 46 Democrats in approving the Amendment. The Amendment states:

"An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."

Unfortunately, the Senate also passed the Ayotte Amendment preventing the use of funds to transfer or release detainees from Guantanamo to the U.S. The vote was 51 to 44 in favor of the ban.

The ACLU says Feinstein's Amendment doesn't go far enough. Here's why: [More...]

  • It would NOT make America off-limits to the military being used to imprison civilians without charge or trial. That's because its focus on protections for citizens and green-card holders implies that non-citizens could be militarily detained. The goal should be to prohibit domestic use of the military entirely. That's the protection provided to everyone in the United States by the Posse Comitatus Act. That principle would be broken if the military can find an opening to operate against civilians here at home, maybe under the guise of going after non-citizens. This is truly an instance where, when some lose their rights, all lose rights -- even those who look like they are being protected.
  • It is inconsistent with the Constitution, which makes clear that basic due process rights apply to everyone in the United States. No group of immigrants should be denied the most basic due process right of all -- the right to be charged and tried before being imprisoned.
  • It would set some dangerous precedents for Congress: that the military may have a role in America itself, that indefinite detention without charge or trial can be contemplated in the United States, and that some immigrants can be easily carved out of the most basic due process protections.

Earlier, the White House issued a statement objecting to a number of provisions, including those prohibiting funding transfers of detainees to U.S. prisons and third countries. Like prior statements, it said the President's advisors would recommend a veto of the bill if passed in its current form. [More...]

The Administration continues to believe that restricting the transfer of detainees to the custody of foreign countries in the context of an ongoing armed conflict interferes with the Executive's ability to make important foreign policy and national security determinations, and would in certain circumstances violate constitutional separation of powers principles. The Administration also continues to oppose the prohibition on funding to construct, acquire or modify a detention facility in the United States to house any individual detained at Guantanamo, which shortsightedly constrains the options available to military and counterterrorism professionals to address evolving threats. The restrictions carried forward by section 1031 were misguided when they were enacted and should not be renewed.

The statement refers to his signing prior NDAA bills with the restrictions:

When he signed past versions of this legislation, the President objected to the restrictions carried forward by section 1031, promised to work towards their repeal, and warned the Congress that the restrictions on transferring detainees from Guantanamo Bay to foreign countries would in certain circumstances interfere with constitutional responsibilities committed to the Executive Branch. Since these restrictions have been on the books, they have limited the Executive's ability to manage military operations in an ongoing armed conflict, harmed the country's diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security.

Roll call votes continue on today on the NDAA.

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    i'm with the ACLU. in fact, this is an (5.00 / 1) (#1)
    by cpinva on Fri Nov 30, 2012 at 08:36:23 AM EST
    amendment that shouldn't even have to exist to begin with. the constitution is pretty damn clear on this subject. just another example of a supreme court failing, miserably, to do its basic job. so much for scalia's vaunted "originalist" position, since it's only when it's convenient for him, and bork, and all the others who claim this nonsensicle, no basis in history, interpretive style.

    i hope mr. bush is a believing christian. i hope he sincerely believes in everything he's been taught, christian dogma wise. i hope this, because it means he's destined for hell, in the afterlife, and st. peter grants no exceptions for studied stupidity.

    Naomi Wolf is on facebook (5.00 / 1) (#2)
    by Militarytracy on Fri Nov 30, 2012 at 08:45:53 AM EST
    Claiming that the new NDAA makes it even easier to indefinitely detain and links to this:

    But on closer examination the new NDAA actually makes it EASIER to detain citizens indefinitely.

    Here's the added clause in question:

    "Nothing in the AUMF or the 2012 NDAA shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the AUMF and who is otherwise entitled to the availability of such writ or such rights."

    Yesterday we focused on the line "nothing ... shall be construed to deny ... any constitutional Rights ..."

    But today we offer another interpretation from Bruce Afran, a lawyer for the group of journalists and activists suing the government over the 2012 NDAA.

    Afran explained that the new provision gives U.S. citizens a right to go to civilian (i.e. Article III) court based on "any [applicable] constitutional rights," but since there are are no rules in place to exercise this right, detained U.S. citizens currently have no way to gain access to lawyers, family or the court itself once they are detained within the military.

    "The biggest thing about the [2012] NDAA was that you weren't getting a trial ... Nothing in here says that you'll make it to an Article III court so it literally does nothing," Dan Johnson, founder of People Against the NDAA, told BI. "It's a bunch of words, basically,"

    Afran noted that the newest version actually goes further than the NDAA that's now in effect.

    "The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far," Afran said. "Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S."

    For further details, read Kafka. (5.00 / 2) (#3)
    by Mr Natural on Fri Nov 30, 2012 at 06:52:12 PM EST