Senator Feinsten Confirms President and Military Can Detain US Citizens Without a Trial
If you still have doubts that the recently passed Senate bill 1867 (National Defense Authorization Act for Fiscal Year 2012) is harmless, read this e-mail from Sen. Dianne Feinstein (D-Calif).
S. 1867′s Sec. 1301 gives authority to the President to detain certain “covered persons” without charge or trial “until the end of the [war] hostilities.” There’s a dispute in the blogosphere as to whether “covered persons” include U.S. citizens.
Sen. Rand Paul
Feinstein — like Sen. Rand Paul (R-Kentucky) and Mark Udall (D-Colo)– had tried to get an amendment into S 1867 that would “limit the authority of the Armed Forces to detain citizens of the United States under section 1031″, but her proposal was rejected by the Senate 45Y – 55N.
Sen. Mark Udall
Here’s Sen. Feinstein’s e-mail to FOTM’s beloved Tina:
Date: Mon, Dec 5, 2011 at 12:05 PM
Subject: U.S. Senator Dianne Feinstein responding to your message
Dear Mr. and Mrs. ___:
Thank you for writing to express your concerns about the detention provisions in the “National Defense Authorization Act for Fiscal Year 2012.” I appreciate knowing your views and welcome the opportunity to respond.
This year’s defense authorization bill would, among other things, authorize funding for the U.S. Department of Defense. As you know, section 1031 would authorize the U.S. government to detain suspected terrorists until the end of hostilities, and section 1032 would require that certain suspected terrorists connected to al-Qaeda be automatically detained in military custody when apprehended.
Like you, I oppose these provisions. Section 1031 is problematic because it authorizes the indefinite detention of American citizens without due process. In this democracy, due process is a fundamental right, and it protects us from being locked up by the government without charge. For this reason, I offered an amendment to prohibit the indefinite detention of U.S. citizens without trial or charge. Unfortunately, on December 1, 2011, this amendment failed by a vote of 45-55.
I was, however, able to reach a compromise with the authors of the defense bill to state that no existing law or authorities to detain suspected terrorists are changed by this section of the bill. While I would have preferred to have restricted the government’s ability to detain U.S. citizens without charge, this compromise at least ensures that the bill does not expand the government’s authority in this area.
I also oppose section 1032 of the defense bill, which creates a presumption that individuals associated with al-Qaeda will be held in military custody, as opposed to being processed through the criminal justice system. I disagree with this approach, and believe that the President should be able to hold captured terrorists in the military or the criminal justice systems based on the individual facts and evidence of each case. Accordingly, I offered an amendment to clarify that under section 1032, the presumption of U.S. Armed Forces detention only exists for an individual captured abroad. Unfortunately, on December 1, 2011, this amendment also failed on a vote of 45-55.
Once again, thank you for your letter. Please know that I am committed to ensuring that our nation has the appropriate tools to combat terrorism, and committed to upholding our fundamental constitutional rights. If you have any additional comments or questions, please do not hesitate to contact my Washington, D.C. office at (202) 224-3841. I hope that you and your family enjoy a happy and healthy holiday season.
May I wish you and your family a happy and healthy holiday season.
United States Senator
In the end, however, both Feinstein and Mark Udall voted “yes” on S1867, while Sen. Rand Paul held firm and was one of seven senators who voted against the bill.
This is not the end of the story. Now that both houses of Congress have passed their respective versions of the National Defense Authorization Act for Fiscal Year 2012 (the House version of this Act is HR1540), they must now reconcile their two versions in committee. FYI, the House version of the Act is significantly different from the Senate’s version. More on this in a separate post to come.