***FULL REPORT ON THE HEARING – “Torture Memo Author Testifies Against Banning Indefinite Detention of Americans” ***

11:52 AM ET Feinstein doesn’t really answer Bradbury. She has to be somewhere and hearing is adjourned. I’ll get up a short report on key exchanges.

11:49 AM ET Bradbury says “We’ve been lucky.” He notes failed attacks in Detroit and New York. He says once we capture them we want them to not know what will happen. We are not going to torture [cause you won't be in the room].

Bradbury wants a legal system that understand difference between prosecuting for a crime and capturing someone for intelligence. The American people don’t understand how law enforcement works.

If it is permitted to kill a US citizen, why in the world can’t we hold them indefinitely?

11:48 AM ET Feinstein says “looking the part” is problematic. She notes the difference of opinion and says there is a profound kernel of American jurisprudence and constitutional rights involved in all this.

She comments to Bradbury on Classified Information Procedures Act and then thanks everyone for being at the hearing….

11:42 AM ET Graham openly praises President Obama’s continuation and expansion of Bush’s counterterrorism policies. He launches into a line of questioning about intelligence being most important and asks about when Miranda rights and habeas corpus rights must be afforded.

Graham says Bush used too much executive power and Obama has been reluctant to use executive power available. (True? What about drone strikes? Libya war?)

11:38 AM ET Bradbury subscribes to the intellectually and morally bankrupt One Percent Doctrine, which is that if there is a one percent chance something can happen, it should be prevented at all costs. This, of course, only applies to use of state power and not curbing state power. The Executive Branch is permitted an authority to indefinitely detain because an enemy combatant might make it necessary under some extraordinary circumstances.

11:36 AM ET Vladeck wants Congress to provoke the question – that is, provide clarity on the legal due process rights afforded to Americans.

11:30 AM ET Franken reminds those at the hearing (and watching) that Bradbury wrote a memo authorizing torture.

11:27 AM ET Bannai says yes, we have not detained US citizens en masse but we need not. Essentially, why not preemptively act to make sure this never happens? She notes guarantee to habeas corpus did not do much for Japanese-Americans during WWII. So, yes, she is concerned that at present we will have military involved in detaining citizens and that they will have discretion to decide who should be detained.

11:25 AM ET Sen. Al Franken challenges Bradbury and Grassley who suggest it is wrong to compare indefinite detention of “terror suspects” to the internment of Japanese-Americans during WWII. He points out that after 9/11 the country did round-up innocent Muslim Americans.

11:15 AM ET Feinstein is nicely challenging Bradbury on his assertion that “criminal charges could interfere” with the collection of intelligence. She says, “I’m in a position where I can see it has not.” She cites the example of Abdulmutallab, the underwear bomber, who was Mirandized.

Bradbury goes on to describe some convoluted scenario that I think could be the plot to a wildly entertaining blockbuster movie but is no justification for not codifying a general protection of due process rights for Americans.

11:10 AM ET Bradbury also adds this legislation could make it impossible to obtain intelligence from combatants because charges would have to be brought against Americans. He clearly states he opposes the legislation.

11:07 AM ET Bradbury not surprisingly defends power to indefinitely detain “enemy combatants” under use of military force in times of war. He says this act would “raise prospect” of “unnecessary conflict” between Legislative and Executive Branches on issue of due process rights for Americans. The additional concern is that it would generally apply to any and all future conflicts.

10:59 AM ET Stephen Vladeck finds the status quo is uncertainty on the issue of due process rights for Americans. Citing Supreme Court decisions, Congress should provide clarity. Posse Comitatus was one historic example where Congress provided clarity. He goes through authorities the Executive Branch has to authorize indefinite detention when it deems detention is necessary.

10:55 AM ET Lorraine K. Bannai notes we are confronted with new fears against new set of people but citing her work in defense of Fred Korematsu, who was indefinitely detained as a Japanese-American during World War II, she says US should not violate Americans’ rights. Citing Justice Earl Warren, times when people are prone to react impulsively without factual evidence are times when constitutional protections are in most need of affirmation.

10:53 AM ET Second panel gives statements, takes questions.

10:49 AM ET Rep. Landry, who jokes about his Louisiana accent (that makes him sound like he might be Huey Long’s grand nephew), strongly asserts Congress must protect rights and liberties of American citizens. He wants the issue to be put to rest once and for all. He says show Americans that when liberty is at stake those that have been entrusted to protect it will act on their behalf.

10:40 AM ET Rep. Garamendi giving his witness statement. He says the NDAA had to be passed for the US military but it came close to infringing on rights of Americans. He, too, mentions that America is not tolerating terrorism or extremism or anything like that, which might pose threat to security. He then makes clear concern that NDAA might allow for indefinitely detaining US citizens.

10:37 AM ET Feinstein transitions to tough talk on terrorism. She is making it clear that it is less of a “threat” now. She makes clear that this legislation would not address the use of detention or harsh interrogations for people like Hamdi or Padilla. It is about protecting innocent Americans in the wrong place at the wrong time (like maybe the Muslims the NYPD is spying on routinely).

10:34 AM ET “We conclude that clear Congressional authorization is required for detention of Americans on US soil.” Feinstein reads from Padilla v. Rumsfeld decision. She says Fourth Circuit came to decision on “disputed claims” about Padilla taking up arms against US in Afghanistan. The Due Process Guarantee Act would resolve dispute.

10:31 AM ET If it would be possible to pass legislation that would cover citizens unlawfully in the US, Feinstein would be for it. Cites Supreme Court precedent as allowing such protection.

10:29 AM ET Broad outrage at the NDAA and AUMF, specifically that it would grant authority to indefinitely detain Americans. Feinstein says this was clear from number of Americans that phoned congress people to protest the act.

10:24 AM ET Sen. Feinstein delivering opening statement and she tells personal story of what she remembers about Japanese people being forced into internment camps. She says this period remains a “dark stain” on our history and something that should not be repeated. She mentions the Non-Detention Act of 1971 passed by Nixon and how Reagan apologized for the internment of Japanese when president.

10:23 AM ET The Justice Department didn’t send a witness to testify on NDAA but briefed senators on procedures just released on the employment and utilization of NDAA powers.

10:19 AM ET What would be the state of law on Americans even if captured abroad if this bill became law? Would passage of this bill increase the possibility that this country would be victimized by another terror attack? Both questions Grassley asks.

10:17 AM ET Grassley cites recent mandatory procedures on military detention released by the Obama administration and concludes bureaucratic requirements, etc, will make it nearly impossible to use authority to detain citizens.

10:15 AM ET Sen. Charles Grassley also gives opening statement saying that this hearing is part of having an open and transparent debate on granting due process to Americans or granting the power to government to indefinitely detain US citizens. (Should this even be up for debate?)

10:14 AM ET Sen. Patrick Leahy declares indefinite detention contradicts the most basic principles of law and delivers strong opening statement against powers contained in NDAA.

Original Post

The Senate Judiciary Committee is holding a hearing on legislation sponsored by Sen. Dianne Feinstein that would clarify that authorizations of military force, declarations of war or any similar authorities should not permit the indefinite detention of American citizens without charge or trial. The legislation has been introduced in response to the National Defense Authorization Act passed last year, which granted the military extraordinary power to detain US citizens and was seen by many as codifying indefinite detention into US law.

The hearing is happening at 10 am EST. There are two panels scheduled to address the legislation, which would neutralize some of the executive power granted to the Executive Branch under the NDAA.

Watch the hearing live stream here.

Two panels of witnesses will be testifying: John Garamendi, a US congressman from California, and Jeff Landry, a US congressman from Louisiana, are on the first panel. Lorraine K. Bannai, director of the Fred T. Korematsu Center for Law and Equality, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship at the American University Washington College of Law and Steven G. Bradbury, former acting Assistant Attorney General and principal deputy for the Office of Legal Counsel of the Justice Department will be on the second panel.

If Bradbury’s name seems familiar, that is because he authored one of the “torture memos” the Bush Administration used to justify the “enhanced interrogation” of detainees. He is, according to the ACLU, expected to defend the NDAA.

Here the ACLU provides background on witnesses testifying this morning, including Bradbury:

Sens. Patrick Leahy and Dianne Feinstein could invite two witnesses to the hearing and Sen. Charles Grassley, as the ranking Republican, could invite one witness. Sens. Leahy and Feinstein invited two eminent law professors, including one who directs the Korematsu Center for Law and Equality and will testify on what the country can learn from the horrible events of the federal government’s internment of Japanese-Americans during World War II.

Sen. Grassley had one slot. He could have searched the country for someone to provide wise advice to the Senate. Who got the one slot? Steven Bradbury, who was the head of the Justice Department’s Office of Legal Counsel during the Bush administration, and was one of the top legal architects of the torture program.

Yes, the same Steven Bradbury who wrote memos that were essentially manuals on how to get away with torturing and abusing people. The memos have page after page reciting techniques about which the CIA sought advice — including how to slam people against the wall, how many times they could be waterboarded per session (six), how to slap people, and how to douse people with very cold water (up to 20 minutes of soaking with 41 degree water) — and approving those techniques. It is stunning still that no one has been criminally charged for these acts.

Now, this architect of the torture program will advise the Senate tomorrow not to block the use of the NDAA indefinite detention powers in the United States itself. If you are as stunned as we are, let Congress know

A draft of the legislation proposed by Feinstein can be read here. A version has been introduced in both the House and Senate. Garamendi is the sponsor of the House version of this proposed bill.

I’ll be posting updates on the hearing here and will also be live tweeting the hearing here @kgosztola.