An amendment to the 2013 National Defense Authorization Act sponsored by Sen. Dianne Feinstein ( D-Calif.) and passed by a 67-29 vote late Thursday has been hailed as a way to end the prospect of indefinite detention of U.S. citizens.
But it isn't, because there's a catch.
Here's the key sentence of the amendment:
"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 ."
The American Civil Liberties Union (ACLU) sent lawmakers a letter that said "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."
Armed Services Committee Chairman Carl Levin (D-Mich.) seemed to agree: "This is a big 'unless,'" he said.
Michael McAuliff of The Huffington Post points out that Levin himself said that he believes " the 2001 authorization for the use of military force [AUMF] authorized the detention of U.S. citizens when appropriate in accordance with the laws of war. " The AUMF gives the president the authority to indefinitely detain anyone involved in carrying out the 9/11 terrorist attacks.
And, as we reported yesterday, lawyer Bruce Afran said that the 2013 NDAA "states that persons lawfully in the U.S. can be detained under the [AUMF]" because it equates the AUMF with section 1021 of the NDAA , which allows the president to indefinitely detain anyone who commits a "belligerent act" or provides "substantial support" to the Taliban, al-Qaeda or "associated forces."
"Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S," Afran said.
That means that the 2013 NDAA may be the only statute that Congress would need to pass to "authorize the domestic military detention of any person in the United States."
Or, as Representative Justin Amash (R-Mich.) put it, " that Act of Congress is the 2012 NDAA, which renders the rest of the Feinstein amendment meaningless. "
The blog Belligerent Acts echoes Afran and Amash: "The Feinstein-Lee Amendment, in the guise of protecting Constitutional rights, has instead simply extended the unconstitutional powers that the 2012 NDAA granted to the President, also to the Congress."
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