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.
Feinstein aides did not respond to a request for comment.
Anders said that proponents of indefinite detention “reached the conclusion that they could read the Feinstein amendment as not making any meaningful change” thanks to the Authorization for Use of Military Force (AUMF) Congress passed one week after the attacks of Sept. 11, 2001. That measure gave then-President George W. Bush (R) virtually unlimited warmaking powers inside and outside of the United States by explicitly approving “all necessary and appropriate force” against “nations, organizations, or persons” the president claims to be involved in terrorist plots.
Because that authorization is still in effect, advocates can say Congress has explicitly authorized indefinite detention of American citizens, among others. Outside of a Supreme Court challenge, only a formal end to Bush’s terror war would seal the dam for good.
“If that’s correct, it would mean that the Feinstein amendment potentially helps nobody by providing no relief and hurts everyone by at least implying there is detention authority within the United States,” Anders said, acknowledging that his concerns may not be in line with what a court could ultimately decide.
“If nothing else, if anyone ever is picked up and put away without charge or trial because of how badly worded this thing is, whoever that is will spend a long time arguing in court about what this language actually means,” he added.
Although neither Presidents Bush nor Obama have discussed actually ending the war on terror, now in its 12th year, one top official recently did just that.
Jeh Johnson, one of the Pentagon’s top attorneys, gave a speech on Friday in which he claimed “there will come a tipping point” in which al-Qaeda has been “effectively destroyed.” Once that has happened, and he didn’t say when, Johnson said he believes “our efforts should no longer be considered an armed conflict.”
“‘War’ must be regarded as a finite, extraordinary and unnatural state of affairs,” he added. “We must not accept the current conflict, and all that it entails, as the ‘new normal.’ Peace must be regarded as the norm toward which the human race continually strives.”
Such a formal end to the terror war would render the military’s power to indefinitely detain Americans or anyone else within the U.S. null and void, but it’s not clear when that “tipping point” may come. There is, however, some reason to hope that Johnson’s view gains a more prominent platform: a senior Obama administration official told Foreign Policy just one day before Johnson’s terror war speech that he is on the “short list” to become the next Attorney General of the United States.
As for the NDAA, Congress still isn’t quite finished with it, and President Obama has threatened a veto over language prohibiting him from transferring military prisoners into civilian custody — a key linchpin Republicans are holding onto in order to keep the controversial Guantanamo Bay military prison open. Several Republican Senators are also pushing for what amounts to authorization to construct a second Guantanamo-style prison to stow terror war prisoners far from U.S. shores. House Republicans also have their own version of the bill, which will have to be reconciled if either passes.
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