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Feinstein-Lee NDAA Amendment Passes, But Is It Enough?

The New American: Naive. That's the word used by the Wall Street Journal to describe attempts by a handful of senators to outlaw the indefinite detention of Americans under key provisions of the National Defense Authorization Act (NDAA).

On Thursday, by a vote of 67-29, the Senate agreed to such a measure, an amendment to the NDAA co-sponsored by 18 senators including Diane Feinstein (D-Calif.), Mike Lee (R-Utah), and Rand Paul (R-Ky.).

The purpose of the amendment was “to clarify that 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.”

Speaking in support of the amendment, Senator Feinstein said:

The beauty of our Constitution is that it gives everyone in the United States basic due process rights to a trial by a jury of their peers. That is what makes this nation great. As Justice Sandra Day O'Connor wrote for the plurality in Hamdi v. Rumsfeld, "As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

Senator Lee also promoted passage of the measure by calling upon his colleagues to recall the civil liberties that undergird the Constitution:

Senator Feinstein and I have worked closely together over the course of the past year to craft what we believe represents a very prudent course in protecting both our nation and our liberties at the same time. Security is important, and precisely because it's important, it must not be acquired at the expense of our individual liberty. It may well be said that government's most important basic responsibility is to protect the liberties of its citizens. Our nation has fought wars on American soil and around the world in defense of individual liberty. And we must not sacrifice this most fundamental right in pursuit of greater security, especially when we can achieve security without compromising liberty. The Feinstein-Lee amendment does precisely that.

We must stand behind our 225-year-old founding document as it's been amended to ensure our liberty isn't taken away from us, to give us a path to providing for our security without jeopardizing the freedom that our American citizens cherish so much and have fought so hard and so long to protect. Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's great constitutional values. This amendment, the Feinstein-Lee amendment, protects those values.

Not everyone agrees, however.

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Here's a technical analysis

from a law professor. His conclusion is that it does prohibit indefinite detention.


"Not everyone agrees, however."

Neither do I.

Some will even say that it is a 'step in the right direction'. It is not.

The right direction would have been abiding by the Constitution and not insert anything to the contrary in the NDAA in the first place. The right direction would be to stricken 1021, 1022, 1031, 1032, anything that opposes the Constitution, not create vague amendments to it, which does nothing other than to water down.

Political grandstanding. Appeasement, desensitization, whatever the in-word is today. Whatever the word, tptb, nwo, are earning their keep.

"What if the American people learn the truth" - Ron Paul

I don't think that striking

I don't think that striking those sections would have been sufficient to dissuade the president. Not at this point.

President Obama believes his authority to detain American citizens without trial originates from PUBLIC LAW 107–40, “Authorization for Use of Military Force” (AUMF), which was signed into law by President Bush on September 18, 2001.

NDAA 2012 didn't establish his authority to detain. The controversy that ensued pertained to language in the original senate version of the bill (S. 1253 Section 1031 & 1032) that would have removed the presidents authority to detain anyone he desired.

S. 1253, Section 1031, Subsection d [PDF]
(d) CONSTITUTIONAL LIMITATION ON APPLICABILITY TO UNITED STATES PERSONS.—The authority to detain a person under this section does not extend to the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States except to the extent permitted by the Constitution of the United States.

November 17, 2011 - Senator Carl Levin:
“We were delayed in getting this year’s bill to the Senate floor by two issues that have arisen since the time the Armed Services Committee approved the first version of this bill, S. 1253, in late June.

“The administration and others expressed misgivings about the detainee provisions in the initial bill, although the provisions in our initial bill represented a bipartisan compromise that was approved by the committee on a 25-to-1 vote. Many of these concerns were based on misinterpretations of the language in that bill; nonetheless, we have worked hard to address these concerns.”

“…the new bill would modify the detainee provisions to address concerns and misconceptions about the provisions in our initial bill. In particular, the new bill first modifies section 1031 of the bill, as requested by the administration, to assure that the provision that provides a statutory basis for the detention of individuals captured in the course of hostilities conducted pursuant to the 2001 authorization for use of military force, the AUMF, to make sure that those provisions and that statutory basis are consistent with the existing authority that has been upheld in the courts and neither limits nor expands the scope of the activities authorized by the AUMF.”

It was the president who demanded the language in section 1031 be removed to protect his authority to detain anyone he wanted.

His New Years eve signing statement provided more evidence to this fact.

Public perception was that Obama had reservations about the 2012 NDAA because it allowed the indefinite detention of US citizens. This was not the case. The truth was exactly the opposite.

Thank you for the corrections.

Striking 1021 would have been more of a statement than the amendment.

Though I errored on the other section(s), I still hold that the amendment was nothing more than political grandstanding. It is required to defend and uphold the Constitution.

"What if the American people learn the truth" - Ron Paul