Feinstein Bill a Great Step Forward for the Illusion of Civil Rights

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Hope you dontWhile most people were getting ready for New Year's, President Obama was happily signing the National Defense Authorization Act (as Jonathan Turley discusses here). As you may recall, the NDAA contains a hilarious provision that requires anyone accused of terrorism to be detained by the military until the "War on Terror" is over – currently scheduled for never – except that this is not required for U.S. citizens detained in the United States. It's optional, you see, so nothing at all to worry about. See "Whoa, Did Something Die in Here? Oh, It Was Freedom," Lowering the Bar (Dec. 6, 2011).

Well, he wasn't entirely happy with the bill. In a "signing statement" – something else he opposed when he was running for president – he said he was signing it "despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists." Aha – he DOES care about our rights, is something you might say if you then stopped reading. He continued, "my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals … and the results we have achieved are undeniable. Our success … has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need … and to utilize whichever authorities best protect the American people …." That's it.

In other words, his "reservations" stem from concerns that the bill may infringe on his own authority, not because he cares whether you rot in jail without a trial. That's consistent with the revelation that the White House actually insisted there not be an exception for citizens, back when the NDAA was oozing through Congress. So, that's super.

There was a debate over whether there should be such an exception, as I also wrote about in more detail. See "You Say 'Indefinite Military Detention of Citizens' Like It's a Bad Thing," Forbes.com (Dec. 7, 2011). Senator Feinstein offered an amendment that would have established one, which was promptly rejected 55-45. Her Plan B, which did pass, was a provision saying that the intent was not to change existing law, but because a majority of senators apparently already think it's okay to detain U.S. citizens indefinitely, that is not too comforting.

Various sources now report that Feinstein has introduced a bill (with some bipartisan support) that would try again to sort of create an exception for citizens who may be detained here at home. The "Due Process Guarantee Act of 2011" – and here I had been thinking due process was already guaranteed – would amend the NDAA to say that

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.

Sounds great! Until you get to that last clause. What's that all about? Well, Feinstein calls it a "'clear-statement rule' that requires Congress to expressly authorize detention authority" when it comes to U.S. citizens. Okay, but, see, that doesn't "guarantee due process" (or Sixth Amendment rights). In fact, it suggests that even Feinstein thinks Congress can just take it away, as long as it clearly says that's what it's doing, instead of sneaking around like it's been doing.  So that is not making me feel much better.

I understand that it is almost impossible for Congress to say anything clearly, but I'm still not willing to risk it.