Thursday, December 1, 2011

Senate Passes Defense Spending Bill, with Detainee Provisions

The Senate today passed the National Defense Authorization Act for Fiscal Year 2012, S. 1867, with its several provisions dealing with the government's detention authority.  Recall that the Obama Administration previously objected to several detainee-related provisions of the bill and threatened a veto.

Today's Senate vote comes after the Senate earlier this week rejected an amendment proposed by Senator Udall that would have stripped the detainee-related provisions from the bill and another amendment proposed by Senator Feinstein that would have prohibited indefinite military detention of U.S. citizens.

According to The Hill, the Senate vote, 93-7, came after an agreement to include compromise language that simply says that the bill does not alter existing law for the detention of U.S. citizens or anyone captured or arrested in the U.S.  In other words, the compromise maintains the status quo and punts any hard questions to the courts.  It doesn't appear to change anything in the legislation.

In particular, the bill still contains the provisions that the administration objected to: Section 1031, which codifies the government's detention authority recognized by the courts; Section 1032, which mandates military custody for certain terrorism suspects, but not for U.S. citizens and lawful residents (military custody appears to be optional for these); and Sections 1033, 1034, 1035, and 1036, which restrict the government's ability to detain and transfer detainees. 

SDS

http://lawprofessors.typepad.com/conlaw/2011/12/senate-passes-defense-spending-bill-with-detainee-provisions.html

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Comments

I'm still not entirely understanding if I should be angry or not. Under the Act, are US Citizens and LPRs exempt from any possibility of indefinite military or civilian detention on the strength of suspicion alone? Are Amcits and LPRs, whether under suspicion or not, still afforded their full Constitutional rights? Or is this Act deliberately vague to afford the government more authority to detain until a court releases Amcits and LPRs from either military or civilian detention? I'm not a lawyer. Keep it simple and understandable.

Posted by: Jim Delaney | Dec 2, 2011 8:45:34 AM

I would like to second Jim's comment. Would you please specify exactly what this does to our rights? Thank you.

Posted by: Eric | Dec 2, 2011 8:46:08 PM

http://www.aclu.org/blog/national-security/senators-demand-military-lock-american-citizens-battlefield-they-define-being

(Excerpt from the ACLU Blog )
UPDATE I: Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.

But you don’t have to believe us. Instead, read what one of the bill’s sponsors, Sen. Lindsey Graham said about it on the Senate floor: “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

There you have it — indefinite military detention of American citizens without charge or trial. And the Senate is likely to vote on it Monday or Tuesday.

Posted by: Wade | Dec 4, 2011 11:07:33 AM

I'm going to have to look over this very carefully, and have it confirmed by someone who is an expert in such matters. But if it actually looks like this might get passed, even beyond a veto, and it actually gives the military the right to detain/deny American citizens due process, then I might for the first time really consider a citizen's arrest on the participating congressmen/women who voted yes. It is not their place to try and put back-doors into the constitution so that they might feel slightly safer at night.

Posted by: Freedom | Dec 6, 2011 6:44:12 AM

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