Don't Be Fooled by New NDAA Detention Amendment

The Senate is once again debating the National Defense Authorization Act (NDAA), and is within a day or two of voting yet again on the issue of indefinite detention without charge or trial in the United States itself.

Last year, Congress passed the NDAA and made permanent very broad authority for the military to throw civilians into prison without charge or trial. While military detention without charge or trial is illegal in the United States, some key senators urged that even American citizens and others picked up in the United States could be detained under NDAA.

They did not succeed. The NDAA that was signed into law on New Year's Eve last year was bad enough, but it did not authorize military detention within the United States. Some in Congress now want to have a second crack at it-some to make it better and some to make it worse.

Sen. Dianne Feinstein has introduced an amendment that superficially looks like it could help, but in fact, would cause harm. Feinstein was a forceful leader last year against the NDAA detention provisions and believes that she is doing the right thing this year. But the problem is that the actual text of her amendment is bad.

It might look like a fix, but it breaks things further. Feinstein's amendment says that American citizens and green-card holders in the United States cannot be put into indefinite detention in a military prison, but carves out everyone else in the United States.

There are three problems with her amendment:

  • It would NOT make America off-limits to the military being used to imprison civilians without charge or trial. That's because its focus on protections for citizens and green-card holders implies that non-citizens could be militarily detained. The goal should be to prohibit domestic use of the military entirely. That's the protection provided to everyone in the United States by the Posse Comitatus Act. That principle would be broken if the military can find an opening to operate against civilians here at home, maybe under the guise of going after non-citizens. This is truly an instance where, when some lose their rights, all lose rights -- even those who look like they are being protected.
  • It is inconsistent with the Constitution, which makes clear that basic due process rights apply to everyone in the United States. No group of immigrants should be denied the most basic due process right of all -- the right to be charged and tried before being imprisoned.
  • It would set some dangerous precedents for Congress: that the military may have a role in America itself, that indefinite detention without charge or trial can be contemplated in the United States, and that some immigrants can be easily carved out of the most basic due process protections.    

The executive director of the Japanese American Citizens League just 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.

There are good ways and bad ways to amend the NDAA. Sen. Mark Udall (D-Colorado) has introduced two amendments that would change the NDAA in good ways. But Sen. Feinstein, despite good intentions, has introduced a harmful amendment.

There is still time to stop it. Call your senators now and say "Vote NO" on the Feinstein amendment, unless it is fixed to make the entire United States off-limits to indefinite detention without charge or trial by the military. The congressional switchboard number is 202-225-3121. This amendment goes to the very heart of who we are.

And here is a letter from a coalition of organizations urging a NO vote:

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To: Feinstein...

"Whenever I hear any one arguing for slavery I feel a strong impulse to see it tried on him personally."

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume VIII, "Speech to One Hundred Fortieth Indiana Regiment" (March 17, 1865), p. 361.

Charles Slakan

Doesn' t the U.S.Constitution require anyone commiting a crime in the US to be tried in the area of judicial jurisdiction where the crime was committed? This is consistent with other terrorists who have been tried and imprisoned here in the USA?
The enemy combatant definition can not be used to undermine the Conztitution.
The idea of detaining anyone for years and years without a trial is surrealistic. It doesn't fit what once were the Law and Ideals of our nation.
Detaing innocent people is a crime; there just is no other way to describe it.
I sincerely hope President Obama does not add that crime to his legacy. No one could forgive him for it because he is a lawyer from Harvard.


This is so disturbing an inhumane on so many levels, I'm almost fed up to the point where I want to migrate to a different country.


I would like an update to this ,as your reports says it is a year old.. anything new as of today Nov 15, 2013?


The fact that our Constitution is being shredded by first Bush now Obama administrations including Congress should scare the living hell out of ALL Americans. This isn't about "where to try some terrorists". This is fundamentally stripping away constitutional rights and freedoms that had been preserved for over 200 yrs. In the last 10 yrs, they've been slowly stripped away and no one seems to care. WAKE UP AMERICA!

So, you think the point of this is to give the U.S. the right to start picking citizens off the street for some permanent R&R? There is a point where the black helicopter conspiracies become a bit tired.

I am an American citizen, and I believe firmly in Constitutional rights. In fact, I believe in them so much I took the time to correctly spell the word.

I also recognize that legislators, like Dianne Feinstein, may be unfamiliar with the United States Constitution, and laws breeding from this unfamiliarity are often challenged and overturned.

This is part of the discourse of our nation. If you wish to wrap yourself in fear or self-deport, fine. I'm certain neither you nor anyone you know, have ever known or have ever heard of will be permanently detained by this clause of NDAA. And no, my head is not buried in any sand and I have no natural tendency to trust everything government does.

If you have time to kill fearmongering about law, this is perhaps an uneventful place to start. Take a gander at our national expenditures if you really wish to raise your pulse.

Jason Walker - ...

I just made a very thoughtful post about this matter, and it was "blocked as spam" by ACLU.

Now I know which organization is not protecting my rights to free speech. I couldn't go back to save my work and inquire why it was blocked, it was simply deleted, marked as Spam and "Denied."

The ACLU is dead to me, as apparently freedom of speech is valuable everywhere except within the walls of ACLU.

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