Congress has stripped an amendment to the 2012 National Defense Authorization Act that would have banned the indefinite military detention of American citizens.
The amendment, sponsored by Sen. Dianne Feinstein (D-CA) and Sen. Mike Lee (R-UT), would have banned the indefinite military detention without charge or trial of Americans and lawful US residents on domestic soil, but not of foreigners or Americans detained abroad in the War on Terror. The Senate approved the measure by a vote of 67-29 earlier this month.
The amendment declared that "an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial a citizen or lawful resident of the United States apprehended in the United States, unless an Act of Congress specifically authorizes such detention."
There was no similar provision in the defense bill passed by the House of Representatives, and the indefinite detention ban does not appear in the final version of the bill agreed upon in a conference committee of both houses of Congress.
Many civil liberties advocates dismissed the news of the amendment's removal, since the language "...unless an Act of Congress specifically authorizes such detention" was widely interpreted as Congress leaving the door open to authorize such detention in the future. Others were also upset that the ban would have only covered Americans and lawful US residents on domestic soil, while providing no protection for foreigners or Americans captured abroad during the course of the ongoing war.
The ban on indefinite detention was replaced with the following language:
"Nothing in the Authorization for Use of Military Force or the National Defense Authorization Act for Fiscal Year 2012 shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights... to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws."
But the US Supreme Court has already ruled in Boumediene v. Bush that all War on Terror detainees have the right of habeas corpus-- the right to be brought before a judge and challenge their detention.
"This language doesn't do anything of substance," Raha Wala, a lawyer with the advocacy group Human Rights First, told the Huffington Post. "It doesn't ban indefinite detention within the United States or change anything about existing law."
"I was deeply saddened and disappointed that we could not take a step forward to ensure at the very least American citizens and legal residents could not be held in detention without charge or trial," Sen. Feinstein lamented. "To me, that was a no-brainer."
Indefinite detention is as old as the War on Terror itself. The 2001 Authorization for Use of Military Force (AUMF), drafted in the wake of the September 11 attacks on the United States, granted the president the power to indefinitely detain terrorism suspects, but in a very narrowly defined way and only in instances directly pertinent to the 9/11 terror attacks:
"The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The 2012 National Defense Authorization Act (NDAA), however, contained such broad, vague language that it caused widespread alarm among those Americans who were aware of it. Section 1021 of the 2012 NDAA reads:
"Congress affirms... the authority of the President... to detain a person who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks [or] a person who was part of or substantially supported al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners... without charge or trial until the end of hostilities."
The 2012 NDAA was quietly signed into law by President Barack Obama on New Year's Eve. Even as he signed the bill into law, Obama expressed his "serious reservations" about what he was doing and vowed never to indefinitely detain US citizens.
In September, Judge Katherine B. Forrest of the US District Court for Southern New York ruled that the indefinite detention provision of the NDAA was unconstitutional, but the following month a three-judge panel of the US Court of Appeals for the 2nd District bowed to pressure from the Obama administration and overruled Forrest.