Skip to main content

Michael McAuliff reports that a bipartisan group of Senators Make Bid To End Indefinite Detention In NDAA, led by Senator Diane Feinstein (D-CA), and supported by Sens. Kirsten Gillibrand (D-N.Y.), Rand Paul (R-Ky.), Dean Heller (R-Nev.), Mark Udall (D-Colo.), Jon Tester (D-Mont.), Mike Lee (R-Utah), Chris Coons (D-Del.), Susan Collins (R-Maine), Mark Kirk (R-Ill.) and Frank Lautenberg (D-N.J.).


Declaring that a provision of the National Defense Authorization Act of 2012 put the country on a path to repeat the shame of World War II's internment camps, they argued the offending language should be stricken in this year's defense bill.

The authority to detain anyone on suspicions that they backed Al Qaeda was codified in law for the first time in the NDAA last winter, although the two most recent White House administrations have asserted since 2001 that the military has always had that authority, stemming from Congress' Authorization to Use Military Force (AUMF) passed after the 9/11 attacks.

President Obama signed the measure, despite opposing it and promising never to use the power.

Sen. Dianne Feinstein (D-Calif.), who helped write that amendment, declared Wednesday that it is not good enough, and recalled seeing Japanese Americans jailed in horse stalls at a racetrack when she was a girl. .. "I believe that the time has come now to end this legal ambiguity, and state clearly, once and for all, that the AUMF or other authorities do not authorize such indefinite detention of Americans apprehended in the U.S.," Feinstein said.

Libertarian Senator Rand Paul complained of a recent report from one of our controversial new "fusion centers" now in every state to coordinate domestic spying on U.S. citizens that would have been illegal prior to the Patriot Act which Paul said:


"From this fusion center comes a document that says beware of people who have bumper stickers supporting third party candidates," Paul said. "Beware of people who believe in stricter immigration laws. Beware of people who support the right to life. They might be terrorists.
Senator Rand asks, "Do we want to give up the right to trial by jury when we're being told that somebody who keeps food in their basement might be a terrorist?"

Since we are now in a permanent "war on terror," the "temporary" enhancement of executive branch power is essential an abrogation of our constitutional rights, and civil liberties.

We progressives should take this advantage to reach across party lines and support this bipartisan effort to support our waning civil liberties against these recent assaults from the Patriot Act and NDAA.

And, speaking of which, is it not time to reopen the FISA discussions that progressive were asked five years ago to put on the back burner, with the promise we would fix as soon as the election was over?  

We've waited patiently and worked hard to elect President Obama twice now, and more than proved our loyalty to this President and this Party. It is now time for this President and this Party to keep promises made to us. I ask those who demanded such support five years ago, and over the last years to now to keep their promises to those of us who complied and kept our end of the bargain.

Our constitutional rights and civil liberties are worth fighting for and are at risk.  

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Sometimes a Little Paranoia is a Good Thing (7+ / 0-)

    Paranoid today, realistic tomorrow.

    "From this fusion center comes a document that says beware of people who have bumper stickers supporting third party candidates," Paul said. "Beware of people who believe in stricter immigration laws. Beware of people who support the right to life. They might be terrorists.
    •  With great pain and anguish, I'm about to say... (4+ / 0-)
      Recommended by:
      radarlady, zett, DamselleFly, HoundDog

      something that I never thought I'd even consider -- let alone say out loud:

      I agree with Rand Paul
      (now, please excuse me; I have to go sulk away to a dark corner and rethink my life while self-flagellating)

      "That men do not learn very much from the lessons of history is the most important of all the lessons of history." ~ Aldous Huxley

      by markthshark on Thu Nov 29, 2012 at 12:58:49 AM PST

      [ Parent ]

    •  Depends on the third party (0+ / 0-)

      Greens, Libertarians, socialists and various iterations?  No.

      Heritage Party, Constitution Party and the like? Yes they might. The Minutemen, border defense, and some right to life groups? They've proven they are.  But bumperstickers are not the way to track them down efficiently and legally. It's unclear that our law enforcement has ever limited itself to following the law, though, hard to expect they'll start now.

      Can we expect Mr. Paul to start demanding the release of Leaonard Pelltier, Ed Poindexter and Mondo We Longa, Mumia Abu Jamal, or even Don Seligman? That'll be the day.

      William O. Douglas- “I am for the individual over government, government over big business and the environment over all.”

      by WaltK on Thu Nov 29, 2012 at 11:35:36 PM PST

      [ Parent ]

  •  In the House bill, at least (11+ / 0-)

    Some of the indefinite detention language has been clarified (a little long, but an important read):

    SEC. 1031. FINDINGS ON DETENTION PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE ENACTED IN 2001.
    Congress finds the following:

    (1) In 2001, Congress passed, and the President signed, the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) (hereinafter referred to as the ‘AUMF’), which authorized the President to ‘use all necessary and appropriate force’ against those responsible for the attacks of September 11, 2001, and those who harbored them ‘in order to prevent any future acts of international terrorism against the United States’.

    (2) In 2004, the Supreme Court held in Hamdi v. Rumsfeld that the AUMF authorized the President to detain individuals, including a United States citizen captured in Afghanistan and later detained in the United States, legitimately determined to be ‘engaged in armed conflict against the United States’ until the end of hostilities, noting that ‘[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles’.

    (3) The Court reaffirmed the long-standing principle of American law that a United States citizen may not be detained in the United States pursuant to the AUMF without due process of law, stating the following:

    (A) ‘Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship.’.

    (B) ‘It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.’.

    (C) ‘[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.’.

    (D) ‘[A]bsent suspension, the writ of habeas corpus remains available to every individual detained within the United States.’.

    (E) ‘All agree suspension of the writ has not occurred here.’.

    (F) ‘[A]n enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.’.

    (G) ‘Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.’.

    (H) ‘[U]nless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions.’.

    (I) ‘We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.’.

    (4) In 2008, in Boumediene v. Bush, the Supreme Court also extended the constitutional right to habeas corpus to the foreign detainees held pursuant to the AUMF at the United States Naval Station, Guantanamo Bay, Cuba.

    (5) Chapter 47A of title 10, United States Code, as originally enacted by the Military Commissions Act of 2006 (Public Law 109-366), only allows for prosecution of foreign terrorists by military commission.

    (6) In 2011, with the enactment of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81), Congress and the President affirmed the authority of the Armed Forces of the United States to detain pursuant to the AUMF a person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks, or a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

    (7) The interpretation of the detention authority provided by the AUMF under the National Defense Authorization Act for Fiscal Year 2012 is the same as the interpretation used by the Obama administration in its legal filings in Federal court and is nearly identical to the interpretation used by the Bush administration. This interpretation has also been upheld by the United States Court of Appeals for the District of Columbia Circuit.

    (8) Such Act also requires the Secretary of Defense to regularly brief Congress regarding the application of the detention authority provided by the AUMF.

    (9) Section 1021 of such Act states that ‘Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.’.

    SEC. 1032. FINDINGS REGARDING HABEAS CORPUS RIGHTS.
    Congress finds the following:

    (1) Article 1, section 9 of the Constitution states ‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.’.

    (2) Regarding the Great Writ, the Supreme Court has noted ‘The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’.

    SEC. 1033. RIGHTS UNAFFECTED.
    (a) Rule of Construction- Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights.

    (b) Notification of Detention of Persons Under Authorization for Use of Military Force- Not later than 48 hours after the date on which a person who is lawfully in the United States is detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note), the President shall notify Congress of the detention of such person.

    (c) Habeas Applications- A person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody.

    http://www.govtrack.us/...

    The bill still contains some language that I'm uncomfortable with, but this has been in the NDAA since 2011.

    SEC. 1036. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
    None of the funds authorized to be appropriated by this Act for fiscal year 2013 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who--

    (1) is not a United States citizen or a member of the Armed Forces of the United States; and

    (2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

    Also note that what I've found of the Senate bill does not seem to contain any language on the matter whatsoever (if I've missed it please correct me): http://www.govtrack.us/...

    Republicans are far more socialist than Democrats. Just because they want to redistribute the wealth upwards does not make it any better.

    by MrAnon on Wed Nov 28, 2012 at 09:28:29 PM PST

    •  Thanks MrAnon, this is great. Thanks so much. (4+ / 0-)
      Recommended by:
      MrAnon, Chacounne, Lujane, radarlady

      The means is the ends in the process of becoming. - Mahatma Gandhi

      by HoundDog on Wed Nov 28, 2012 at 09:29:52 PM PST

      [ Parent ]

    •  I appreciate you bringing this here. (8+ / 0-)

      To put it mildly, the judges in the military tribunals are not a
      "neutral decisionmaker."

      And, of course, we must renew and refresh our push to ensure that those responsible at the highest levels for the torture that has been inflicted by the US since 9/11 are held legally accountable.

                 Standing for justice and accountability,
                                For Dan,
                                Heather

      Torture is ALWAYS wrong, no matter who is inflicting it on whom.

      by Chacounne on Wed Nov 28, 2012 at 09:57:14 PM PST

      [ Parent ]

    •  I don't see any operative language (1+ / 0-)
      Recommended by:
      tle

      that actually does anything.

      Detainees already have rights to habeas corpus, so who fucking cares if the bill says, "this bill shouldn't be construed as denying habeas.". rather than doing anything good, the long passage you.cite is just CYA stuff to protect the bad stuff from constitutional challenge.

  •  This is great news (6+ / 0-)
    Recommended by:
    kurt, HoundDog, Lujane, marina, radarlady, Farkletoo

    Time to congratulate Sen. Feinstein on doing the right thing and to write to Sen. Boxer to ask her to join in

    Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

    by Mindful Nature on Wed Nov 28, 2012 at 10:21:48 PM PST

  •  "until the cessation of hostilities" (6+ / 0-)
    Recommended by:
    kurt, HoundDog, Simplify, Lujane, marina, radarlady

    Arguably the AUMF authorized the invasion of Afghanistan.  Once we pull out, there will be some interesting arguments that the legal authority to hold the Guantanamo captives no longer exists.

    Maybe that prosecution might start to look smarter after all.

    Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

    by Mindful Nature on Wed Nov 28, 2012 at 10:22:57 PM PST

    •  Unfortunately (1+ / 0-)
      Recommended by:
      HoundDog

      The AUMF also is the authorization of the drone war, which won't does not have a clear end.

      Republicans are far more socialist than Democrats. Just because they want to redistribute the wealth upwards does not make it any better.

      by MrAnon on Thu Nov 29, 2012 at 07:36:04 AM PST

      [ Parent ]

      •  Perhaps It should be the other way around (2+ / 0-)
        Recommended by:
        MrAnon, HoundDog

        the drone war is part of the AUMF.  When the hostilities authorized (the war in Afghanistan) ends, the drone war must stop also.

        I'm not saying it's necessarily a winning legal argument though.

        Hay hombres que luchan un dia, y son buenos Hay otros que luchan un año, y son mejores Hay quienes luchan muchos años, y son muy buenos. Pero hay los que luchan toda la vida. Esos son los imprescendibles.

        by Mindful Nature on Thu Nov 29, 2012 at 08:00:22 AM PST

        [ Parent ]

  •  The diversity of Senators sponsoring is amazing (3+ / 0-)
    Recommended by:
    radarlady, zett, HoundDog

    I thought it would only be extremely liberal Democrats who supported ending the NDAA issue but it appears this has got more bipartisan support than I imagined.  WOW.

  •  Imagine a Rmoney presidency. (2+ / 0-)
    Recommended by:
    radarlady, HoundDog

    Weird question: how many people voted for Obama (partly, mostly, or wholly) for fear Romney whoring NDAA like a tyrannical dictator?

    As much as an exciting experience it was voting Obama for first time this year, in the back of my mind though some tiny small part of me felt like being blackmailed cause it was either him or Bush 3.0. Anyone else felt this way?

  •  fuck Rand Paul. (0+ / 0-)

    by reiterating urban legends about basement pantries he's catering to Alex Jones and making the country dumber.

  •  The name of the new bill (1+ / 0-)
    Recommended by:
    HoundDog

    will be "The Bill of Rights."

    Oh. Wait.

  •  I don't see any bravery in it. It's not like they (0+ / 0-)

    are going to suffer in some way from supporting this bill.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site