POLITICS
11/28/2012 08:26 pm ET Updated Nov 29, 2012

Senators Make Bid To End Indefinite Detention In NDAA

WASHINGTON -- A bipartisan group of senators made a bid Wednesday to end the indefinite military detention of Americans in the United States.

Declaring that a provision of the National Defense Authorization Act of 2012 put the country on a path to repeat the shame of World War II's internment camps, they argued the offending language should be stricken in this year's defense bill.

The authority to detain anyone on suspicions that they backed Al Qaeda was codified in law for the first time in the NDAA last winter, although the two most recent White House administrations have asserted since 2001 that the military has always had that authority, stemming from Congress' Authorization to Use Military Force (AUMF) passed after the 9/11 attacks.

President Barack Obama opposed the measure, but ultimately signed it after an amendment to the act muddied the issue enough to make it debatable in courts. Obama pledged to never use the authority.

Sen. Dianne Feinstein (D-Calif.), who helped write that amendment, declared Wednesday that it is not good enough, and recalled seeing Japanese Americans jailed in horse stalls at a racetrack when she was a girl.

"I believe that the time has come now to end this legal ambiguity, and state clearly, once and for all, that the AUMF or other authorities do not authorize such indefinite detention of Americans apprehended in the U.S.," Feinstein said.

"The federal government experimented with indefinite detention of U.S. citizens during World War II, a mistake we now recognize as a betrayal of our core values," she said. "Let’s not repeat it."

The amendment filed by Feinstein Wednesday would bar such detentions of citizens and green card-holders. She was also backed by Sens. Kirsten Gillibrand (D-N.Y.), Rand Paul (R-Ky.), Dean Heller (R-Nev.), Mark Udall (D-Colo.), Jon Tester (D-Mont.), Mike Lee (R-Utah), Chris Coons (D-Del.), Susan Collins (R-Maine), Mark Kirk (R-Ill.) and Frank Lautenberg (D-N.J.).

It was not clear when the amendment would get a vote.

The even bipartisan mix of the backers showed the extent to which civil liberties issues have come to transcend partisan politics, with senators on the right equally worried that the indefinite detention provision could allow the government to stomp on individuals.

Paul, who adheres to many libertarian positions, noted that the federal government's "fusion centers" -- which are supposed to facilitate the flow of anti-terrorism information -- already make recommendations that many people would find objectionable, and if carried to their logical conclusions, could provide basis for jailing just about anyone.

Paul pointed to a report from a center in Missouri: "From this fusion center comes a document that says beware of people who have bumper stickers supporting third party candidates," Paul said. "Beware of people who believe in stricter immigration laws. Beware of people who support the right to life. They might be terrorists.

"This is an official document," paul added. "Do we want to give up the right to trial by jury when we're being told that somebody who keeps food in their basement might be a terrorist?"

The problem that many opponents of the indefinite detention provisions see with it is that it is especially vague, saying only that the military can grab anyone who provides "substantial support" to Al Qaeda or "associated forces." Those terms are not defined by the law, which is being challenged in the federal courts.

Defenders of the provision say the complaints are nonsense because the United States has always had the right to detain anyone who was fighting against it in war.

"In every war, Americans have joined the enemy forces. In every other war when they do so that is considered an act of war, not a common crime," said Sen. Lindsey Graham (R-S.C.), a former military lawyer who called Feinstein's amendment a "disaster."

"What they're trying to do is say if you can find an American who is trying to help Al Qaeda, you can't hold them for military interrogation to find out what they're up to," Graham said. "You have to read them their rights and treat it as a common crime ... I think it will make us less safe."

Graham suggested a major problem with shielding Americans from the military system is that it would become an enticement for Al Qaeda to use citizens to carry out attacks, on the theory that they could get lawyers before divulging details to military interrogators.

"I think what you would actually be doing is actually encouraging the enemy to find American citizens," he said. "You would make an American operative much more valuable to Al Qaeda."

Paul suggested that sacrificing trial by jury for some Americans was tantamount to a cowardly defeat.

"If we give up our rights, have not the terrorists won?" Paul said. "If we relinquish our rights because of fear, what is it exactly that we are fighting for?"

He was also disturbed by the open-ended nature of the law and the so-called war.

"We are asked to relinquish our rights because the battlefield is limitless," he said. "It is, although, not a temporary suspension they are asking for, and they request this because they also say the battle is without limit. This is not a war that is going to end," he said. "They are asking you to relinquish your right to trial by jury for the rest of this limitless war."

On that point, at least, Graham agreed. "I think I won't live to see the situation where radical Islamists are not threatening the United States," he told The Huffington Post. "I think one day they will be defeated, but it's not going to happen any time soon."

Graham also said the authority that allows for indefinite detention should stand until that time.

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

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