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Indefinite Military Detention Measure Passes On Bill Of Rights Day

Indefinite Detention

First Posted: 12/15/11 05:24 PM ET Updated: 12/15/11 08:30 PM ET

WASHINGTON -- The Senate passed a defense bill Thursday that authorizes indefinite detentions of American terrorism suspects, coincidentally acting on the controversial measure on the 220th anniversary of the ratification of the Bill of Rights.

The bill, the National Defense Authorization Act, passed 86 to 13 and is expected to be signed quickly by President Obama, who withdrew a veto threat against the bill Wednesday. Six Democrats, six Republicans and one independent opposed the bill.

Though the legislation passed overwhelmingly, several senators argued that it was threatening fundamental provisions of the Bill of Rights, which is celebrated every Dec. 15.

"We as Americans have a right to a speedy trial, not indefinite detention," said Sen. Mark Kirk (R-Ill.). "We as Americans have a right to a jury of our peers, which I would argue is ... not enlisted or military personnel sitting in a jury. You cannot search our businesses or place of business or our homes without probable cause under the Bill of Rights."

"You cannot be deprived of your freedom or your property without due process of law, and that, I would say, is not indefinite detention," added Kirk, who voted for the bill. "I would actually argue that no statute and no Senate and no House can take these rights away from you."

The 13 senators who voted against the bill were Dick Durbin (D-Ill.), Ben Cardin (D-Md.), Al Franken (D-Minn.), Tom Harkin (D-Iowa), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), Bernie Sanders (I-Vt.), Jim Risch (R-Idaho), Rand Paul (R-Ky.), Mike Lee (R-Utah), Jim DeMint (R-S.C.), Mike Crapo (R-Idaho) and Tom Coburn (R-Okla.).

Supporters of the bill argued that current U.S. law is a combination of rulings and precedents that already allow indefinite detention of Americans. But they say that granting the military explicit authority to investigate and detain terrorism suspects -- including Americans -- is vital to ensuring the nation can keep up with an adaptable and changing enemy threat.

They point to court rulings that have found detentions of citizens to be proper. But opponents say the issue of grabbing up Americans on U.S. soil and putting them in military detention without trial has never actually been tested by the Supreme Court.

"This provision would for the first time in American history require our military to take custody of certain terrorism suspects in the United States," said Durbin, who was especially concerned with two sections of the bill -- 1021 and 1022 -- and voted "no."

He argued -- citing FBI Director Robert Mueller's opposition to the provisions -- that there was no reason to mess with a system that has worked well since Sept. 11, 2001.

"Since 9/11 our counterterrorism professionals have prevented another attack on the United States, and more than 400 terrorists have successfully been prosecuted and convicted -- prosecuted and convicted -- in federal court," Durbin said. "Why do we want to change this system when it's working so well to keep America safe? The fact that these detainee provisions have caused so many disagreements and such heated debate demonstrates the danger of enacting them into law."

Sen. Dianne Feinstein (D-Calif.), who added an amendment to the bill that specifies the resulting measure would not affect current law regarding citizens, argued that her provision provides protection for Americans.

Nevertheless, in voting for the bill, she also proposed a new bill that she, Durbin, Kirk and others intend to pursue later in hopes of making her interpretation the law.

"I strongly believe that constitutional due process requires that United States citizens apprehended in the United States should never be held in indefinite detention," Feinstein said. "That is what this legislation would accomplish."

Feinstein offered a similar amendment during earlier debate over the $662 billion defense bill, and it failed. It was not clear that this measure would do any better, although she noted that it built on a law signed in 1971 by President Nixon meant to curb abuses such as the internment of Japanese Americans in World War II.

The bill requires military treatment for foreign terrorism suspects. Defenders of the bill have pointed to one part of the provisions that say U.S. citizens are "exempted" from the requirement to be detained by the military, but legal scholars note that even though that detention is not required, it is allowed.

President Obama had threatened to veto the measure. But after provisions were added that gave him the final say over which suspects stay in military custody, he relented. Those provisions also ensured that the FBI and other law enforcement agencies would still be permitted to investigate and interrogate terrorist suspects. Mueller has called the provisions insufficient, warning that they will create bureaucratic roadblocks in the midst of vital investigations.

Obama could sign sign the bill as soon as Friday.

Civil liberties groups were infuriated that Obama retreated from the veto threat, and called on him to reconsider.

"The NDAA enshrines the war paradigm that has eroded the United States' human rights record and served it so poorly over the past decade as the country's primary counterterrorism tool," said Tom Parker, policy director of Amnesty International USA. "In doing so, the NDAA provides a framework for 'normalizing' indefinite detention and making Guantanamo a permanent feature of American life," he said, referring to a restriction in the measure on closing the Cuba prison for terror suspects.

"By withdrawing his threat to veto the NDAA, President Obama has abandoned yet another principled position with little or nothing to show for it," Parker said. "Amnesty International is appalled -- but regrettably not surprised."

Michael McAuliff covers politics and Congress for the Huffington Post. Talk to him on Facebook.

CORRECTION: This article originally stated that Ben Cardin is a senator from Delaware. It has been fixed to reflect that he is in fact a senator from Maryland.
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