Washington Markup

First-Ever Hearing on NDAA Indefinite Military Detention

By Sam Milgrom, Washington Legislative Office at 5:04pm

As we reported to you earlier this week, last year's NDAA indefinite military detention provisions have finally received their first hearing. The hearing provided a platform to discuss problems with indefinite military detention in general. Many members of Senate Judiciary Committee made it clear throughout the hearing that they are committed to prohibiting indefinite detention without charge or trial and clarifying that it doesn't apply within the United States itself.

In his opening remarks, Judiciary Chairman Sen. Patrick Leahy said, "[The NDAA] contained what to me are deeply troubling provisions related to indefinite detention. I viewed them as inconsistent with our Nations' fundamental commitment to protect liberty… We need a bipartisan effort to guarantee that those arrested on American soil are not locked away indefinitely without charge or judicial review."

Sen. Dianne Feinstein pledged her commitment to ridding indefinite military detention by recounting her experience as a young girl in San Francisco who witnessed the imprisonment of innocent Japanese-American citizens in the wake of the bombing of Pearl Harbor in 1941. She said, "Seeing the barbed wire, and the men, women and children housed in horse stables and small buildings on the infield of the racetrack was an experience I will never forget."

Professor Lorriane Bannai, who is the Director of the Korematsu Center for Law and Equality at the Seattle University School of Law, drew similar parallels in her testimony. She stated, "During World War II, persons of Japanese ancestry were incarcerated without any due process… They were rounded up because our country feared attack from the government of Japan, there were unfounded suspicions that some among their number were engaged in illegal activity, and they looked like the enemy… In the face of that fear, the rule of law was suspended. We are now confronted with new fears against new peoples, and, while we do need to ferret out and prosecute criminal conduct, we need to do so in a way that preserves our system of laws."

Also testifying at the hearing was the former acting Assistant Attorney General and Principal Deputy for the Office of Legal Counsel under the Bush administration, Steven Bradbury. Testifying in favor of military detention without charge or trial he said, "…we need to consider the possibility that there could well be extraordinary circumstances during armed conflict when the President may determine it necessary to detain a U.S. Citizen as an enemy combatant consistent with the laws of war." But Sen. Feinstein — who chairs the Senate Intelligence Committee and is briefed on the most secret of secret intelligence developments — sharply disputed Bradbury on this point and said she sees no reason for this kind of power here at home.

And, as we reported yesterday, Sen. Al Franken pointed out that Bradbury was an architect of the Bush Administration's torture program — a fact that should cast serious doubt on the credibility of his testimony.

Though this was a good first step in fixing the mess made by the NDAA, supporters of the law's detention provisions presence at the hearing on Wednesday was a clear indication that neither side of the debate plans to give an inch. NDAA season is now upon us, and we will continue our efforts to restore American values. Join us! Contact Congress today!

We'll keep you posted on the NDAA debate; check back here for updates soon.

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