From Forbes (yes, really):
12/07/2011 @ 7:46PM |2,986 views
You Say “Indefinite Military Detention of Citizens” Like It’s a Bad Thing
As I noted on my other blog yesterday, and as E.D. Kain wrote about here, the Senate recently passed a bill that may authorize the indefinite military detention of U.S. citizens arrested in the United States. (Yes, that actually happened.) A commenter suggested to me that I was wrong to be concerned about this development because of “Senate Amendment 1456.” He didn’t explain, but I don’t like to be wrong in public, so I looked it up. Here’s why it doesn’t make me feel any better.
Senate Amendment 1456, proposed by Senator Feinstein, was a last-minute amendment to the National Defense Authorization Act’s provision on military detention. As I wrote yesterday, there was at least some controversy over the question whether citizens arrested in the U.S. could be detained indefinitely without trial by the military, and it is nice that they took a few minutes to talk it over, since they were arguably about to repeal the Sixth Amendment. The controversy, to be clear, was over whether citizens can be detained forever without trial if arrested in the United States. You may recall that the Supreme Court held in Hamdi v. Rumsfeld that this is okay if citizens are arrested overseas so long as they have a chance to challenge their designation as an “enemy combatant.” Which they do. Sort of.
Hamdi was arrested in Afghanistan, where we were and are still fighting an actual war that the Senate more or less declared. Based on Feinstein’s comments during the debate on her amendment (see also this), it appears that senators disagree over whether Hamdi also applies to citizens arrested here at home, which some feel is also a “battlefield.” Here she is discussing the purpose of Amendment 1456, actually the second amendment she offered to the bill:
The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until “the end of the hostilities,” which, in my view, is indefinitely.
Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi … was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan …. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.
So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.
Emphasis added. This “truce” added subsection (e) to Section 1031 of the act, saying that “[n]othing in this section shall be construed to affect existing law or authorities” relating to anyone arrested within the United States. In short, the Senate could not reach a consensus as to whether the law already does allow the indefinite military detention of a U.S. citizen arrested in the U.S., and so they just agreed to disagree for now. Everybody can believe what they want, says the Feinstein Amendment. Or as Robert Chesney writes, the Senate version of the bill is “explicitly agnostic.”
Should that make you feel better? I don’t think so. Especially because of the vote on the first amendment Feinstein offered, which would have simply added the word “abroad” to make clear that arrests of citizens in the U.S. were not covered. That amendment failed, 55-45. This seems to indicate that a majority of the senators you elected to represent you think that if you are arrested for allegedly being a terrorist or “substantially supporting” terrorism, you can be detained by the military and held, without trial, until the end of the war.
Which will be approximately never, because they also see this as “a war without end,” as Senator Graham admitted during the same debate.
There were, it should be said, a number of comments during the debate suggesting that everybody agreed that no citizen was going to be deprived of a trial. But comments are comments, and none of that seems to have made it into the actual statute. So those, too, do not comfort me. It’s also not entirely clear to me why they think that. In part, it seems to be because they are supremely confident that no citizen would ever be designated, by mistake or due to some improper motive, as a terrorist or a terrorist sympathizer:
Mr. GRAHAM. No one is going to be put in jail because they disagree with Lindsay Graham or Barack Obama.
Maybe not. But even if you do trust those two guys, do you trust all the others? Will you trust all the future leaders who will likely have the same power to “designate” who is covered by these sorts of laws? Are you sure about that? And if you do get wrongly designated, how would you prove it?
Also, there is that Sixth Amendment. Seems like that should count for something.
- ‘Indefinite Detention’ Bill Passes Senate 93-7 (zionistoutrage.com)
- Prison Planet.com ” ‘Indefinite Detention’ Bill Passes Senate 93-7 (postamericana.wordpress.com)
- ‘Indefinite Detention’ Bill Passes Senate 93-7 (mountainrepublic.net)
- US Citizen Military Indefinite Detention in NDAA? (volokh.com)
- You Say “Indefinite Military Detention of Citizens” Like It’s a Bad Thing (forbes.com)