The US Senate voted Thursday to ban the indefinite detention of Americans and lawful US residents on domestic soil, but not of foreigners or Americans detained abroad in the War on Terror.
But the amendment, sponsored by Sen. Dianne Feinstein (D-CA) and passed by a vote of 67-29, also implies that Congress may still have the power to authorize the indefinite detention of anyone, including US citizens, without charge or trial.
The Associated Press reports that Sen. Feinstein's amendment to the 2013 National Defense Authorization Act (NDAA) was co-sponsored by Sens. Rand Paul (R-KY) and Mike Lee (R-UT). Many Republicans voted in favor of the measure, reflecting the widespread shock among Americans that their government had the power to indefinitely detain them without charge or trial.
That power was granted in the 2012 NDAA, which was quietly signed into law on New Year's Eve by President Barack Obama with "serious reservations" and a promise never to apply the law to American citizens.
Sen. Paul, a Tea Party favorite, hailed the amendment's passage.
"People say, 'But these terrorists are horrible people.' Yes, they're horrible people, but every day and night in our country horrible people are accused of crimes and they are taken to court," he said. "They have an attorney on their side. They have a trial. People who we despise, people who murder and rape, are given trials by juries. We can try and we can prosecute terrorists."
Sen. Lindsey Graham (R-SC), who supports indefinite detention, disagreed.
"When you're fighting a war, the goal is not to prosecute people, the goal is to win," he asserted. "How do you win a war? You kill them, you capture them and you interrogate them to find out what they're up to next."
While civil liberties advocates praised the measure as a step in the right direction, many decried what they called its discriminatory exclusion of foreigners or Americans captured overseas from the protections against indefinite detention.
"The constitutional requirements of due process of law apply to all persons within the United States," a coalition of 20 civil liberties groups wrote in a letter to Sen. Feinstein. "The 5th Amendment to the Constitution states that 'No person shall be... deprived of... liberty... without due process of law.'"
More importantly, a key passage from the amendment has raised concerns that the government could one day pass laws allowing for the indefinite detention of anyone on US soil:
"An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of of a citizen or lawful permanent resident of the United States apprehended in the United States unless an act of Congress authorizes such detention."
According to the American Civil Liberties Union (ACLU), that sentence "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."
"This is a big 'unless,'" agreed Sen. Mark Levin (D-MI), chairman of the Senate Armed Services Committee.
Amnesty International argues that there is an easy way to fix the Feinstein amendment by replacing the words "citizen or lawful resident of the United States" to "anyone."
The Senate vote paves the way for a battle in the Republican-controlled House of Representatives, which shot down an attempt to ban indefinite detention of Americans in May.
The 2013 NDAA authorizes $631 billion in military spending for the upcoming year. That's $4 billion less than approved by the House, a discrepancy that must be worked out in the final days of this year.
In related indefinite detention news, the Government Accountability Office (GAO) released a report on Wednesday stating that the military prison at Guantánamo Bay could be closed and its 166 detainees safely transferred to US prisons.
More than half of the men imprisoned at GITMO have been cleared for release, some of them for as long as seven years, but they still languish in what much of the world sees as an illegal prison that has greatly diminished America's reputation as a nation that respects human rights.
Classified documents allegedly leaked to the whistleblower website Wikileaks by imprisoned US soldier Bradley Manning revealed that more than 150 innocent men and boys were held and sometimes tortured in Guantánamo Bay. Retired US Army Col. Lawrence Wilkerson, who was chief of staff to former Secretary of State Colin Powell, claims that former President George W. Bush and members of his cabinet, including Dick Cheney and Donald Rumsfeld, knew that many GITMO detainees were innocent but held them anyway for political reasons.
Sen. Feinstein says the GAO report "demonstrates that if the political will exists, we can finally close Guantánamo without imperiling our national security."
But Republicans, and even Democrats, in Congress have vowed to continue fighting any attempt to move GITMO detainees stateside. An amendment to the 2013 NDAA sponsored by Sen. Kelly Ayotte (R-NH) that bars Guantánamo detainees from being transferred to US soil easily passed by a vote of 54-41 with bipartisan support.
"The top-rate facility at Guantánamo allows for the secure and humane detention of foreign terrorist detainees," Ayotte said. "With a specially-designed courtroom, it is singularly equipped to safeguard intelligence that is critical to protecting our country," she said, referring to the military commission system which the Supreme Court found illegal under both US and international law.
"The administration may want to close Guantánamo, but the American people do not want foreign terrorists like [alleged 9/11 mastermind] Khalid Sheikh Mohammed brought to the United States," Ayotte added.
President Barack Obama, who on his second day in office signed an executive order vowing to close GITMO within a year but then failed to do so for a variety of reasons, responded to Ayotte's amendment by threatening to veto the NDAA unless language prohibiting Guantánamo detainees to the US was stricken.
"If the bill is presented to the President for approval in its current form, the President's senior advisers would recommend that the President veto the bill," the administration said in a statement.