Sen. Dianne Feinstein (Flickr Photo by Freedom to Marry)

Sen. Dianne Feinstein has put forward a flawed and dangerous amendment to the National Defense Authorization Act of 2013. It passed on Thursday and purportedly aimed to prevent United States citizens from being detained indefinitely by the military. What it did was further entrench the power of military indefinite detention and make it more likely the power will be used against immigrants in the United States, even though that has historically been unconstitutional.

The American Civil Liberties Union (ACLU), Amnesty International, Bill of Rights Defense Committee (BORDC), Center for Constitutional Rights (CCR), Human Rights First, Japanese American Citizens League, Physicians for Human Rights and various other organizations have condemned the Feinstein Amendment:

We write as a broad array of organizations in the civil rights, human rights, civil liberties, and immigrant rights fields to urge you to oppose Amendment 3018, submitted by Senator Feinstein as an amendment to the National Defense Authorization Act (NDAA). We greatly appreciate the leadership of Senator Feinstein and many other senators in working last year to try to fix some of the NDAA’s detention provisions. Unfortunately, the Feinstein amendment fails to address a central concern raised in the public debates: the specter of the military being used to police our streets and detain individuals on U.S. soil. The bill also unintentionally reinforces the false and discriminatory notion that due process protections are only afforded to some – not all – persons within the United States….

As the organizations make clear, “The constitutional requirements of due process of law apply to all persons within the United States. The 5th Amendment to the Constitution states that “No person shall be…deprived of…liberty…without due process of law.” The Feinstein Amendment “implicitly authorizes domestic military detention. By seeking to protect only United States citizens and legal permanent residents, the amendment could be read to imply that indefinite military detention of any other persons apprehended within the United States was authorized in 2001 and was lawful. In addition, 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.”

Bruce Afran, a lawyer who successfully argued a lawsuit against an indefinite detention provision in the 2012 NDAA that led to a federal judge issuing a permanent injunction against the provision, unpacked the meaning behind the Feinstein Amendment for Business Insider. Afran addressed this clause in the new amendment:

…Nothing in the AUMF or the 2012 NDAA 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 AUMF and who is otherwise entitled to the availability of such writ or such rights…

According to Afran, “The new provision gives US citizens a right to go to civilian (i.e. Article III) court based on ‘any [applicable] constitutional rights,’ but since there are are no rules in place to exercise this right, detained U.S. citizens currently have no way to gain access to lawyers, family or the court itself once they are detained within the military.”

The 2013 NDAA would further erode due process:

…The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far,” Afran said. “Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the US…”

In the NDAA lawsuit that has been pursued by individuals like founder Tangerine Bolen, Occupy London co-founder Kai Wargalla, Icelandic parliamentarian Birgitta Jonsdottir, WL Central writer and US Day of Rage founder Alexa O’Brien, writer Noam Chomsky and whistleblower Daniel Ellsberg, the government has argued the 2012 NDAA was redundant and affirmed powers of detention that were in the AUMF (an argument Judge Katherine Forrest did not buy at all).

Arguments by the government have made it clear the Justice Department had an interpretation of the AUMF that was different. It wrote up language that used the vague terms at issue in the NDAA lawsuit and then went to Congress. Congress put this legal interpretation into law in the 2012 NDAA.

Essentially, the Feinstein Amendment appears to be an attempt to make powers that a grassroots lawsuit is currently challenging in the courts legal.

The NDAA lawsuit led to a federal judge reviewing the interpretation. The judge found the government’s interpretation of its powers to be unconstitutional. Forrest pointed out the NDAA provision did not merely restate “concepts” originally in the AUMF. Nowhere in case law have the terms “substantially supported,” “directly supported,” or “associated forces” ever appeared prior to the 2012 NDAA being signed by President Obama. The case is currently being heard by the Second US Circuit Court of Appeals (the Second Circuit stayed the judge’s decision to issue a permanent injunction and restored the US government’s powers to have citizens detained by the military).

Additionally alarming is how it would likely contravene Posse Comitatus and authorize the military to engage in acts by allowing the AUMF to be applied to the United States. The Japanese American Citizens League director wrote to Congress:

The [Feinstein] amendment is of particular concern to the Japanese American Citizens League because of our historic concern stemming from the Japanese American incarceration experience during World War II.  Nearly half of the internees were not United States citizens, and would not have been protected by this amendment.  In consideration of due process and the rule of law within the United States, we urge you to oppose the Feinstein amendment, unless revised to protect all persons in the United States from indefinite detention without charge or trial.

It has been widely reported that this amendment addresses issues in the 2012 NDAA, which have stirred outrage among civil liberties advocates and unnerved a number of US citizens concerned about the expansion of executive power in America. But, what this amendment really is, according to Bolen, is an “ongoing obfuscation of what is legal and what is not – both with the government’s arguments in [the NDAA lawsuit] and now in the Feinstein amendment – and the price being paid for this obfuscation” is the fundamental rights of persons inside the United States.

This amendment does not remedy problems created by the provision passed in the NDAA last year. It merely compounds issues and further erodes due process. And the way it has been drawn up, it would not be hard for a creep to occur where Congress and the courts went from allowing the indefinite military detention of immigrants suspected of providing “substantial support” to terrorists to allowing immigrants and US citizens suspected of providing “substantial support” to terrorists to be detained indefinitely by the military as well.

The AUMF has allowed the United States to transform the world into a battlefield for just about any type of military or covert operation.The Obama administration has cited the AUMF as giving it the authority to keep detainees in Guantanamo Bay prison indefinitely. It has been cited as part of the legal justification for putting US citizens and suspected terrorists on secret kill lists and killing them with drones extrajudicially. There are few powers a presidential administration cannot claim under the AUMF, and, whether Feinstein realizes it or not, she is aiding the further expansion of the imperial presidency with this amendment that specifically strips immigrants of due process rights but also obscures the reality that the government is now constantly pushing for the power to indefinitely detain any person within the United States.