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December 19, 2012

Indefinite Military Detention Powers and the Death of the Feinstein Amendment

Posted in: Court Decisions,Military

Lawyers involved in bringing a lawsuit against an indefinite detention provision in the 2012 National Defense Authorization Act (NDAA) have expressed outrage over a Congressional conference committee decision to remove an amendment offered by Sen. Dianne Feinstein that she thought would ban the indefinite detention of US citizens.

Michael B. Kelley for Business Insider reports Carl Mayer, a lawyer representing journalists and activist suing the United States government, declared, “The actions of both parties and the president regarding the NDAA and the power of the military to police the streets of America is shameful…They did what they always do: they posture in public with meaningless votes (i.e. the Feinstein Amendment) and statements and this allows both Republicans and Democrats to pretend to their base that they are fighting for them. In reality, they are protecting the status quo and endangering the freedoms of all Americans.”

Kelley also spoke to lawyer Bruce Afran (who I posted an interview with yesterday). Afran told Kelley that it proved Congress was unwilling to “protect civil liberties” and also showed “Democrats are afraid to be seen as defending the Constitution for fear of being labeled weak on national security.”

Reports on the Feinstein Amendment being dropped have characterized the amendment as a “ban” on indefinite military detention. To set the record straight, it actually would have gone a long way toward further codifying powers of military detention by exempting US citizens or permanent residents from being held indefinitely without charge or trial by the military. That would have made it legal for people here in the US, like students with visas, tourists or even immigrants, to be indefinitely detained.

The Feinstein Amendment, which Sen. Dianne Feinstein wanted us all to believe would ban military indefinite detention of US citizens or permanent residents, actually did not bar the military from detaining such people. It just aimed to require the government to ensure those being held were offered due process and able to get to court for a trial. The kind of trial, as Afran explained, would have been a military trial because that is all that is referenced in the NDAA.

Now, according to POLITICO‘s Josh Gerstein, Sen. Carl Levin said, “Language the House proposed was replaced with language that indicates that last year’s NDAA shouldn’t be interpreted to preclude Habeas Corpus suits by persons detained in the US.” That should not be acceptable to anyone concerned about the codification of military indefinite detention.

Judge Katherine Forrest, who issued a permanent injunction against the indefinite detention provision in the 2012 NDAA in September, outlined in her ruling how habeas review was woefully inadequate:

The Government also argues that, at most, the Court’s role should be limited to a post-detention habeas review. That argument is without merit and, indeed, dangerous.  Habeas petitions (which take years to be resolved following initial detention) are reviewed under a “preponderance of the evidence” standard (versus the criminal standard of “beyond a reasonable doubt”) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous.  If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated.  No court can accept this proposition and adhere truthfully to its oath.

This is what senators and representatives in Congress have replaced the Feinstein Amendment with—language that is essentially the Obama administration’s position on the limited role the courts should play in deciding whether a person is being properly detained indefinitely by the military or not.

Moreover, as Gerstein reported, “Levin and some other senators had argued that the amendment Feinstein put forward to require explicit Congressional authorization for any detention of Americans on U.S. soil would have no real effect because courts had interpreted Congress’s 2001 Authorization for the Use of Military Force as granting authority for detention. However, notwithstanding Levin’s position, the AUMF does not explicitly grant that authority.”

Levin and these senators are actually incorrect. They clearly have not read Judge Forrest’s ruling, which led the Obama administration to file an appeal with the Second Circuit Court of Appeals. She wholly rejected the argument by the government that the 2012 NDAA was redundant and simply included a power of indefinite detention that was in the AUMF. (But, perhaps, the senators just really don’t care and are parroting legal advice from lawyers in the Justice Department, who at this very moment are arguing in the courts that the power of the military to indefinitely detain US citizens should be preserved.)

To recap: (1) The Feinstein Amendment was not a “ban” because how it was written actually would have authorized the government to hold some classes of people in the US in indefinite military detention if necessary; (2) Access to habeas review means stripping any persons in the US who are detained of key constitutional rights and (3) the AUMF did not grant the government the kind of indefinite detention power the 2012 NDAA granted.

Instead of fulfilling an obligation to check executive power, Congress is again opting to allow the further expansion of the imperial presidency, even when there is broad opposition across the political spectrum and among civil society groups. It may not have actually been a ban, but now the lawyers arguing on behalf of the Obama administration will not have to worry about explain this “fix” to any judge in court next year. In that respect, the outcome of the Congressional conference committee is an outright capitulation.

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