Mike Lee clarifies the Feinstein amendmentSubmitted by ewrp on Fri, 11/30/2012 - 19:30
Last night, with the passage of the Feinstein-Lee amendment to the National Defense Authorization Act (NDAA), we took an important step forward in the cause of ending indefinite detention of Americans. For more than a year, I have worked closely with Senator Feinstein on legislation that would protect Americans’ due process rights and ensure that American citizens and permanent legal residents apprehended on American soil may not be detained without charge or trial. Our amendment garnered overwhelmingly bipartisan support -- including from strong civil libertarians such as myself, Sen. Rand Paul, and Sen. Jim DeMint.
A few who share our commitment to civil liberties have expressed concern that the amendment will not in fact accomplish what it is designed to do. I would like to set the record straight.
The amendment provides: “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.”
It is the last clause – “unless an Act of Congress expressly authorizes such detention“ – that has been the source of confusion to some friends of individual liberty. They worry that the 2012 NDAA (or perhaps even an earlier Authorization for the Use of Military Force (AUMF)) could be read to provide such an express authorization and thereby satisfy the high bar set forth in our amendment.
In reality, neither the AUMF nor the 2012 NDAA did any such thing.