Feinstein’s Indefinite Detention Amendment May Actually Expand Executive Power

On Saturday I had written an article about Dianne Feinstein’s (D-CA) amendment to the National Defense Authorization Act (NDAA) with regards to “indefinite detention” that was approved in the Senate last Thursday. In my haste, I failed to fully understand what the amendment was providing and thanks to Dan Johnson of People Against The NDAA (PANDA) I was made aware of just how bad it really is. Therefore, for those who might have been wondering, that is why I quickly pulled the article. It is not my intent to mislead or provide inaccurate information.

The Feinstein amendment, sadly endorsed by Senator Rand Paul (R-KY) after his amendment failed, passed 67-29. The amendment drew support from some 20 Republicans, as well as, 46 Democrats.

The key language in the amendment that has raised a controversy is the following:

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“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.”

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The main problem with the amendment is two fold. One, the amendment only addresses citizens and those who are “lawful permanent residents.” The problem with that is that we are to be a nation of laws. Our Constitution affords anyone in our borders, and is not specific to citizens or those who are “lawful permanent residents,” to due process, including those visiting who do not fall into the previous two categories. The Fifth Amendment is clear:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The second problem is the use of the phrase in the amendment that says, “unless an Act of Congress expressly authorizes such detention.” In a letter written by the American Civil Liberties Union and sent to lawmakers in Washington, they wrote, “the clause ‘unless an Act of Congress expressly authorizes such detention’ could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States.”

They are not alone. Armed Services Committee Chairman Carl Levin (D-Mich.) seemed to agree: “This is a big ‘unless,'” he said.

Rep. Justin Amash (R-MI) took to Facebook and spoke to the specific phrase in question and stated unquivocally, “Well, that Act of Congress is the 2012 NDAA, which renders the rest of the Feinstein amendment meaningless.”

Amash also said, “The Feinstein amendment to the 2013 NDAA does NOT protect you from indefinite detention without charge or trial. In fact, it explicitly permits such detention so long as the detention is approved by an Act of Congress . . . such as the 2012 NDAA.”

Michael Kelly at Business Insider writes,

Michael McAuliff of The Huffington Post points out that Levin himself said that he believes “the 2001 authorization for the use of military force [AUMF] authorized the detention of U.S. citizens when appropriate in accordance with the laws of war.” The AUMF gives the president the authority to indefinitely detain anyone involved in carrying out the 9/11 terrorist attacks.

And, as we reported yesterday, lawyer Bruce Afran said that the 2013 NDAA “states that persons lawfully in the U.S. can be detained under the [AUMF]” because it equates the AUMF with section 1021 of the NDAA, which allows the president to indefinitely detain anyone who commits a “belligerent act” or provides “substantial support” to the Taliban, al-Qaeda or “associated forces.”

“Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S,” Afran said.

Patricia Levi writes at PolicyMic, “The NDAA bill passed by the House does not contain similar language to the Feinstein amendment, and it is unclear if the two branches of Congress can resolve these differences before the lame duck session of Congress ends.”

It can be said that the Feinstein amendment does absolutely noting to protect anyone in the borders of the United States from being indefinitely detained simply because the government says they are terrorists or affiliated with terrorists. These individuals, whether citizens or visitors would not be afforded a basic protection under the U.S. Constitution to due process. I’ll remind you that it was Lindsey Graham (R-SC) who stood on the Senate floor and said if you are caught in the midst of this, Shut up! You don’t get a lawyer.”

As far as I’m concerned, and you should be too, amendments are not going to be enough. The legislation needs to be repealed, just like Obamacare needs to be repealed.

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