Indefinite Detention: Senate Votes Down Military Imprisonment Of Americans

WASHINGTON -- The Senate took a step Thursday toward ending the indefinite detention of Americans in the U.S., voting for a narrow amendment that some civil liberties groups opposed, even though they said it was in the right direction.

The measure, offered by Sen. Dianne Feinstein (D-Calif.) as an amendment to the National Defense Authorization Act of 2013, specifies that citizens and legal residents suspected of terrorism in the U.S. cannot be held without trial indefinitely.

"I know this is a sensitive subject, but I really believe we stand on the values of our country, and the value of our country is justice for all," said Feinstein before the Senate voted 67 to 29 to add her provision to the NDAA.

Civil libertarians had problems with her amendment, even though many regarded it as a positive step.

The key sentence in her measure says: "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."

First, the rights groups argued, the measure does not provide justice for all, because it does not apply to non-citizens or Americans caught overseas.

"The constitutional requirements of due process of law apply to all persons within the United States," a coalition of 20 groups wrote in a letter to Feinstein Thursday. "The 5th Amendment to the Constitution states that 'No person shall be…deprived of…liberty…without due process of law.'"

The groups also said they worried that part of that sentence suggests that Congress believes it can write laws that abridge basic constitutional protections in the future.

"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," the letter said.

Senators who had supported the detention of Americans in the past seemed to agree with the civil liberties groups.

One, Armed Services Committee Chairman Carl Levin (D-Mich.), pointed to the same exception. "This is a big 'unless,'" he said.

"I believe that the 2001 authorization for the use of military force authorized the detention of U.S. citizens when appropriate in accordance with the laws of war," said Levin, referring the authorization Congress passed after the 9/11 attacks.

Sen. Rand Paul (R-Ky.) an opponent of indefinite detention, said he believed the amendment does shield citizens, and said American terrorist suspects would be treated just like criminals and get trials, arguing that if Americans give up a basic constitutional right to trial, terrorists have won.

"People say, 'But these terrorists are horrible people.' Yes, they're horrible people, but every day and every night in our country horrible people are accused of crimes and they are taken to court," said Paul. "They have an attorney on our 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."

President Barack Obama has pledged to never detain people caught in the United States -- perhaps making it an academic point during his presidency -- but if someone were to be grabbed and detained in the U.S., the extreme divergence of opinion among the lawmakers as to what the law does likely assures a court will eventually make a final determination.

Republican Sen. Lindsey Graham (S.C.), a supporter of detention, suggested matters were actually quite simple, and a judge would see it his way.

"When you're fighting a war, the goal is not to prosecute people, the goal is to win," Graham said. "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."

The defense bill passed by the House contains no similar language. It was unclear if Congress would be able to mesh the two measures before the session of Congress ends. It was also unclear that the House would accept the change.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.



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