Headlines last week declaring a civil liberties victory in a Senate vote to do away with indefinite detention provisions in the National Defense Authorization Act are misleading, say critics of military detention of American citizens.
The amendment to NDAA filed by Senator Dianne Feinstein (D-Calif.) and backed by Senators Kirsten Gillibrand (D-N.Y.), Rand Paul (R-Ky.), Dean Heller (R-Nev.), Mark Udall (D-Colo.), Jon Tester (D-Mont.), Mike Lee (R-Utah), Chris Coons (D-Del.), Susan Collins (R-Maine), Mark Kirk (R-Ill.) and Frank Lautenberg (D-N.J.) was approved 67-23 last Thursday.
The amendment reads:
Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) 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 Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights,” reads Sec 1033 (a) of the proposed Pentagon spending bill.
While the lawmakers claimed a victory in reigning in the military’s detention powers, the American Civil Liberties Union argued that that the Feinstein Amendment is far from a fix to eliminate indefinite detention and, in fact, expands the government’s power to hold Americans prisoner.
The ACLU argues the following points are problems with the amendment:
- 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.
The bottom line, according to critics of the amendment, is that it still leaves open the possibility for the U.S. military to detain citizens and persons on U.S. soil in violation of the Posse Comitatus Act, which limits the use of military to enforce domestic law.