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Indefinite Detention: Senator Sees No Need To Change Law That Was Ruled Unconstitutional

Posted: Updated: 05/22/2012 9:03 pm

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Sen. Carl Levin (D-Mich.), left, and Sen. John McCain (R-Ariz.)

WASHINGTON -- The top Democrat responsible for America's indefinite detention law sees no reason to change the measure after it was ruled unconstitutional by a federal judge last week.

Sen. Carl Levin (D-Mich.) shepherded the law through the Senate last year, codifying for the first time policies asserted by the White House since after 9/11 when Congress passed an authorization to use military force against al Qaeda and anyone who supported it.

Federal judge Katherine Forrest, of New York's Southern District Court, found the law violates the due process and free speech protections of the Constitution after government lawyers could not say in court that reporters couldn't be held under the law if they covered someone deemed to be a supporter of al Qaeda.

But Levin, chairman of the Senate Armed Services Committee, dismissed Forrest's ruling, and said he doesn't intend to make any changes to the law when his committee takes up this year's National Defense Authorization Act starting Wednesday.

"I don't think we need any [changes]," Levin said, insisting, as administration lawyers did in court, that the measure did nothing new and was merely an affirmation of existing law. "I don't know of any clarifying language. How much clearer can you be than the law, which says we're not changing the law?"

Levin was referring to a part of the provision -- in Section 1021 of the law -- that says it shall not be construed to affect existing law.

But Forrest disagreed, writing that 1021 "is not merely an 'affirmation' of the [Authorization to Use Military Force]. To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning."

The law expressly requires that terrorism suspects be detained by the military, and allows U.S. citizens to be held as well, although they are exempted from mandatory military detention. President Barack Obama further issued rules barring military jails for citizens, however those rules are not binding on the next president.

"I read the administration's briefs, and I think the administration was right and she was wrong," said Levin.

Instead of making changes, he favors battling it out in the courts.

"I would hope the administration would appeal that, and expect they would, given their position, that we did not change the law in last year's bill on this subject at all," Levin said.

Levin admitted that "there's always a chance" other senators could try to change the measure. ""They're free to do that if they want," Levin said.

Indeed, Sen. Dianne Feinstein (D-Calif.) has proposed a bill that would fully exempt citizens and legal residents from military lockups. Sen. Mark Udall (D-Colo.) has a bill that would exempt all people in the United States, because the Constitution applies rights to persons, not just citizens.

"I think we have to clearly define it, and that's what we're trying to do," Feinstein said. She has 29 cosponsors, including five Republicans.

Many observers regard Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) as the real movers behind the provision.

McCain hammered the judge's decision Tuesday, calling it "ludicrous." But he also sounded more willing than Levin to consider changes.

"We'd like to try to take some steps to ensure that the American citizens have rights of appeals -- that's something we are looking at," McCain said.

"But we are steadfast that an enemy combatant is an enemy wherever they are in the world," he added, noting that the Obama administration carries out a far harsher policy regarding suspected terrorists in Pakistan and the Arabian peninsula who are targeted in drone strikes.

"It's OK to kill American citizens who are enemy combatants overseas, but if they're caught over here in the United States, we're reading them their Miranda rights," McCain said. "That's outrageous."

The House voted last week to maintain indefinite detention.

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

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