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Senate Passes Indefinite Detention Limitations Amid Various Interpretations of the Statute Language

Depending on who you believe, the Senate either voted today to limit indefinite detention practices or voted to allow those limits to be determined by the executive branch. You may need a degree in linguistics to figure this one out.

First, here’s the basics of what happened:

The Senate voted late on Thursday to prohibit the government from imprisoning American citizens and green card holders apprehended in the United States in indefinite detention without trial.

While the move appeared to bolster protections for domestic civil liberties, it was opposed by an array of rights groups who claimed it implied that other types of people inside the United States could be placed in military detention, opening the door to using the military to perform police functions.

Dianne Feinstein and Mike Lee authored the amendment, and it passed by a vote of 67-29.

Here’s where it gets tricky. Who’s right here, the supporters of the amendment, the supporters of indefinite detention, or the civil libertarians who say that the amendment opens up the possibility of more abuse? Well, it depends.

The civil libertarian argument is straightforward. The amendment prevents the unlawful indefinite detention, without due process, of citizens and lawful permanent residents. That leaves open the possibility for non-citizens detained on US soil to be locked up by the military indefinitely without habeas corpus. They claim that it would allow the use of the military in domestic law enforcement operations, and violated the due process clause of the Constitution, which is not limited to US citizens. Feinstein didn’t even really try to rebut this, admitting it was an imperfect solution:

But on the floor, Ms. Feinstein said that she limited the amendment to citizens and green card holders because she believed that language would “get the maximum number of votes in this body.”

So there’s no question that non-citizens could still be indefinitely detained under this standard. It also leaves out US citizens captured abroad.

However, the really strange part of this debate came when supporters of the previous indefinite detention language, including Carl Levin and others, started claiming that the amendment wouldn’t constrain the executive:

Consider this: Senators Carl Levin (D-Mich), Lindsey Graham (R-SC) and Kelly Ayotte (R-NH) voted for the Feinstein amendment, though they were among the most vocal supporters of indefinite military detention for US citizens in the past. According to their floor speeches, the Feinstein amendment actually legalizes indefinite detention rather than blocking it.

The question of what the Senate actually did hinges on language in the amendment that reads: “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” (emphasis mine). It’s that “unless” that the supporters of indefinite detention latched onto.

“Senator Feinstein’s amendment… does not prohibit military detention if it is expressly authorized by law,” said Levin, “which I read as a statute authorizing the use of military force itself or some other act of Congress.” Since Congress did authorize the use of military force against Al Qaeda in 2001, Levin argued, Feinstein’s amendment expressly allows military detention without trial of US citizens, even if captured on US soil.

This just looks like a semantic game, and really a play for establishing a legislative interpretation down the road in case this goes to court. Levin claims that the AUMF “expressly allows” for military detention. But the amendment clearly states that an authorization to use military force “shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States.” Indeed, as Feinstein pointed out, the Jose Padilla case established that the AUMF from 2001 didn’t authorize indefinite detention.

So we’ll see whose interpretation wins out in the end. For now, however, a very narrow band of US citizens may have gotten their due process rights back. However, given the civil libertarian objections, we have a long way to go.

The White House has rather hilariously threatened to veto the underlying defense authorization bill over restrictions on the transfer of detainees from Guantanamo, a threat it has made multiple times in the past on the NDAA, only to end up signing it.

The bill also now includes an amendment from Jeff Merkley to withdraw from Afghanistan at a “steady pace.”

Photo by 710928003 under Creative Commons license.

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David Dayen

David Dayen