Brilliant legal minds have been debating the arcane details of proposed amendments to the 2013 National Defense Authorization Act for the last 48 hours or so, but I'm afraid the general public may be far less aware of the chicanery going in Congress right now than many of us legal and policy wonks are.
In short, the National Defense Authorization Act, or NDAA -- the yearly bill that authorizes national defense spending -- is up for debate in Congress now (as in, tonight) and includes some important proposed changes to last year's bill. Signed into law on New Year's Eve, it allowed indefinite military detention without trial of individuals merely suspected of supporting terrorism -- possibly including U.S. citizens and others arrested on U.S. soil.
That piece of the law rightly outraged many on both the left and the right last year, and legislators from all over the political map are now responding. But while one of those responses is real -- i.e., it would actually fix the problem -- one is not, and by pretending to fix it would only make things worse.
The bi-partisan amendment, sponsored by Reps. Adam Smith (D-WA) and Justin Amash (R-MI), would amend the most controversial detention provisions in last year's law to ban indefinite detention in the United States and repeal mandatory military custody of terrorism suspects.
The amendment offered by Republican Rep. Louis Gohmert of Texas, meanwhile, pretends to restore the right of habeas corpus to those detained in the United States -- a lame substitute for the right to a real criminal trial -- but, in fact, limits that current right. (For non-lawyers, the right to habeas corpus just means the right to challenge the legality of one's detention in a civil proceeding in a U.S. court.)
As American University law professor Steve Vladeck explains, the Gohmert amendment does nothing to restore the right to habeas corpus, which was never taken away in the 2012 NDAA in the first place. In fact, the Gohmert amendment undermines the right to habeas corpus for some people arrested in the United States -- in particular for anyone here in violation of U.S. immigration law. (Everyone has always had the right to challenge the legality of their detention in a U.S. court regardless of their immigration status.) It also could allow the government to forbid a detainee from taking his case to court, or even obtaining legal counsel, for the first 30 days of detention. Currently, any detainee can file a petition for habeas corpus as soon as he's taken into U.S. custody.
In short, an amendment that's masquerading as an effort to restore civil liberties would actually undermine them. Even more pernicious, its real purpose is to detract support from the amendment that would actually improve things -- the Smith-Amash amendment.
As a group of 27 retired military generals and admirals wrote in a letter to Congress yesterday supporting that amendment:
Tell your Congressperson not to be fooled by substitutes.
[W]e strongly believe that sound national security policy depends on faithful adherence to the rule of law. Though it is lawful for the military to detain those engaged in hostilities in an armed conflict, the armed forces should not supplant our law enforcement and intelligence agencies at home.
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