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NDAA 2013 still allows for military detention within the US

The law allowing for indefinite detention of Americans without trial has been stripped from next year’s National Defense Authorization Act, but tweaks to the NDAA don’t mean the possibility of extrajudicial imprisonment has been eliminated for all.

When US President Barack Obama signed into law the annual defense spending bill for 2012, he acknowledged that he had reservations about a provision that allows the government to lock up any United States citizen without providing them with a trial in a court of law. Although Pres. Obama swore to not abuse that clause in such a way that Americans would be at risk of imprisonment, the White House has relentlessly challenged in federal court all efforts to remove the controversial indefinite detention clause from the NDAA. The US Senate has now approved a draft of the defense spending bill for the next fiscal year, and with it has signed off on a promise to ensure habeas corpus for all American citizens. Legal protection is not provided for unlawful immigrants and aliens, however, opening up the possibility of domestic military enforcement of draconian laws.

When the Senate voted unanimously to approve the 2013 NDAA on Tuesday, they gave the go-ahead to an amendment introduced by Sen. Dianne Feinstein (D-California) that on the surface resembles a surefire fix to the previous year’s provision.

“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,” reads the amendment, which is co-sponsored by Senators Mike Lee (R-Utah) and Rand Paul (R-Kentucky)

The language, Sen. Feinstein says, clarifies that no US citizen can be detained for war crimes without be charged and taken to trial, ideally allowing critics of the current NDAA to sign a breath of relief. Upon further inspection, though, Sen. Feinstein’s fix still leaves the door open for Congress to consider indefinite detention without due process for other residents of the US and may allow for the usage of American troops to enforce the law on American soil.

“It might look like a fix, but it breaks things further. Feinstein's amendment says that American citizens and green-card holders in the United States cannot be put into indefinite detention in a military prison, but carves out everyone else in the United States,” explains Chris Anders, an attorney with the Washington, DC legislative office of the American Civil Liberties Union.

According to Anders, the Feinstein Amendment has at least three serious faults that could pose problems starting next year. “It would not make America off-limits to the military being used to imprison civilians without charge or trial,” he writes, “…because its focus on protections for citizens and green-card holders implies that non-citizens could be militarily detained.”


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