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Feinstein Amendment: NDAA Indefinite Detention Change Could Actually Expand Executive Power

On Thursday the Senate approved an amendment to the National Defense Authorization Act (NDAA) meant to protect U.S. citizens and residents from indefinite detention without trial. The measure, proposed by Sen. Dianne Feinstein (D - Calif.), passed 67-29, drawing support from 20 Republicans and 46 Democrats. Although the aim of the measure is admirable, its many critics argue that its legal loopholes render it meaningless, and might even extend the president’s constitutionally questionable ability to authorize indefinite detention to Congress. At best, it seems to only codify the limited due process requirements for detainees that were already set forth in two Supreme Court cases (Hamidi and Boumediene). How could such a well-intentioned amendment fail so badly?

The key language in the Feinstein amendment is as follows:

"An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."

There are two main objections that critics have raised against this amendment, although most of those critics would broadly agree that the intent of the amendment is admirable. The first is that it extends only to citizens or permanent legal residents, although the Fifth Amendment specifies, “No person… shall be… deprived of life, liberty, or property without due process of law.” The Fifth Amendment does not discriminate based on immigration status — it includes everyone, whereas the Feinstein amendment does not.

The second challenge to the Feinstein amendment is more complex and more worrying. The final phrase quoted above, “unless and Act of Congress expressly authorizes such detention,” is the culprit. The American Civil Liberties Union sent a letter to lawmakers describing one main objection to this phrase, arguing that “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." The president already has the worrying ability to indefinitely detain a citizen of the United States, and this amendment could be read as extending this power to Congress.

In fact, many think that language in the 2012 NDAA could be interpreted as the kind of express authorization that the Feinstein amendment calls for. Representative Justin Amash (R - Mich.) worried on his Facebook page that “that Act of Congress is the 2012 NDAA, which renders the rest of the Feinstein amendment meaningless.” There is some legal ambiguity here, and the layers of legislation that determine the United States Government to detain anyone – from citizen to foreigner, abroad or at home – are complex. This article from the Tenth Amendment Center offers a more detailed walkthrough of the specifics of the relevant laws. Above and beyond the specifics, however, it is clear that the Feinstein amendment does not accomplish what it intended to.  The president’s 2012 NDAA authority is not curtailed; section 1021 of the 2012 NDAA, which was meant to clarify the 2001 Authorization to Use Military Force, expressly authorizes indefinite detention.

Finally, the Feinstein amendment does nothing about the authorization to use military tribunals. It prohibits "the detention without charges or trial," but does not specify what kind of trial. While a trial in a military tribunal is arguably better than no trial at all, many important constitutional protections that are available in a civilian court do not apply to a military tribunal; this includes the provision that treason be proved by the testimony of two witnesses.

The NDAA bill passed by the House does not contain similar language to the Feinstein amendment, and it is unclear if the two branches of Congress can resolve these differences before the lame duck session of Congress ends. Perhaps the Feinstein amendment will be kept for its admirable aim, perhaps it will be removed outright, but hopefully it will be ditched in favor of an amendment that accomplishes what it purports to do.

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