A Congressional conference committee tasked with merging the House and Senate versions of the 2013 National Defense Authorization Act (NDAA) decided to drop the Feinstein amendment, which ostensibly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects.
And even though that there was a giant loophole in the Feinstein amendment that made it effectively useless, the lawyers challenging the NDAA in court had some sharp words for the decision to strip the provision.
"The actions of both parties and the president regarding the NDAA and the power of the military to police the streets of America is shameful," Carl Mayer, one of the lawyers representing the journalists and activists suing the government over the indefinite detention provisions of the 2012 NDAA, told BI. " They did what they always do: they posture in public with meaningless votes (i.e. the Feinstein Amendment) and statements and this allows both Republicans and Democrats to pretend to their base that they are fighting for them. In reality, they are protecting the status quo and endangering the freedoms of all Americans."
Bruce Afran, the other lawyer for the NDAA plaintiffs, reinforced the point that the move signals how members of both parties are allowing Americans to be detained indefinitely under the laws of war.
"It is clear that there is not enough will in Congress to protect civil liberties and that the Democrats are afraid to be seen as defending the Constitution for fear of being labeled weak on national security," Afran said.
The 2013 NDAA makes it easier to detain citizens indefinitely by explicitly stating that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF], which gives the president the authority to indefinitely detain anyone involved in carrying out the 9/11 terrorist attacks.
The NDAA plaintiffs successfully argued in federal court that the NDAA expands the powers of the AUMF to allow the indefinite detainment of those, including Americans, who commit a "belligerent act" or provides "substantial support" to the Taliban, al-Qaeda or "associated forces," and the relevant provisions were permanent blocked.
But these provisions were reinstated on appeal by the government, meaning that the power to indefinitely detain Americans is in effect and will continue to be after the 2013 NDAA is enacted.
"The reality is that the Congress has passed and the President will sign another anti-freedom, anti-constitutional, anti-civil liberties bill during the holiday season in the hope that they can again bamboozle the citizenry and sneak in another assault on our freedoms while people are not paying attention," Mayer said.
That doesn't mean that the opponents of the NDAA will sit back and take it. The NDAA lawsuit is currently in the Second Circuit Court of Appeals, and the case challenging the constitutionality of the NDAA indefinite detention provisions may go all the way to the nation's highest court.
"As [President Abraham] Lincoln, who so many of these politicians profess to admire, said: 'You can fool some of the people all of the time; you can fool all of the people some of the time, but you can't fool all of the people all of the time,'" Mayer said. "From day one we have said that this issue will be decided in the courts. From day one, advocates of freedom and liberty have prevailed in federal district court and we will pursue this fight to the Supreme Court if we have to."
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