In his vigorous riposte to my February 2012 article "The NDAA Makes It Harder to Fight Terrorism" Senator Carl Levin (D-Mich.) insisted that I was wrong to see the National Defense Authorization Act (NDAA) as anything more than codifying existing authority. The legislation, Levin says, changes nothing.
Yet discussions in the Senate prior to the bill's passing clearly indicate that the bill's backers were determined to remove terrorist suspects from the criminal justice system and treat them as enemy combatants under military jurisdiction.
In the December 1 Senate Debate on Detainee Provisions, senators claimed that putting terrorists, including U.S. citizens, into the criminal justice system deprives the country of vital intelligence, which could be extracted only by confronting them with indefinite detention, which would give the military time for extended interrogation. They argued that there should be no distinction between opposing U.S. forces on a foreign battlefield and engaging in terrorist activity in the United States.
Levin argues that the legislation does not expand the authority of the president to detain U.S. citizens. Both President George W. Bush and President Barack Obama, like presidents before them, have asserted broad authority, which the courts and Congress have often curtailed. But there is a difference between a president claiming he has authority and Congress giving that claim statutory authority, which the NDAA does.
Levin notes that he and Senator Dianne Feinstein (D-Calif) added an amendment to the bill, specifically stating that it does not change existing authorities relating to the detention of U.S. citizens or others arrested in the U.S. Levin does not mention that this was Feinstein's second amendment. The first, which clearly exempted U.S. citizens from indefinite detention, was voted down.
Feinstein herself was not satisfied with this outcome. Within hours of the NDAA's passage, she introduced the Due Process Guarantee Act, aimed at protecting citizens and legal permanent residents against detention without trial unless expressly authorized by Congress. That bill now has 23 co-sponsors.
With the amendment
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