(2011-11-27) Domestic Detention In Defense Authorization Bill

The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself... The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.

Nov29: The Senate voted Tuesday to keep a controversial provision to let the military detain terrorism suspects on U.S. soil and hold them indefinitely without trial... The final vote showed bizarre fractures among Democrats, erasing the usual barriers between conservatives and liberals. The 16 who voted for the harsh detainee rules were Sens. Bob Casey (Pa.), Kent Conrad (N.D.), Kay Hagan (N.C.), Daniel Inouye (Hawaii), Herb Kohl (Wis.), Mary Landrieu (La.), Carl Levin (Mich.), Joe Manchin (W. Va.), Clair Mc Caskill (Mo.), Robert Menendez (N.J.), Ben Nelson (Neb.), Mark Pryor (Ark.), Jack Reed (R.I.), Jeanne Shaheen (N.H.), Debbie Stabenow (Mich.) and Sheldon Whitehouse (R.I.). National defense hawk and independent Sen. Joseph Lieberman (Conn.) also voted in favor of the tougher language... Rand Paul was joined only by Sen. Mark Kirk (R-Ill.) on his side of the aisle.

Fabius Maximus has more details.

Update: During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens;[13] the amendment was rejected by a vote of 38-60.[14] A later amendment to preserve current law concerning U.S. citizens, lawful resident aliens, and others captured within the United States, sponsored by Senator Dianne Feinstein, was accepted 99 to 1.[15] Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while Senator Lindsey Graham has argued that it does.[4]

Dec14'2011 update: The House has passed a $662 billion defense bill after the White House dropped a veto threat over provisions on handling terrorist suspects... The White House had threatened a veto but was mollified by revisions to the provision mandating military custody for terror suspects.

• Glenn Greenwald: Even the one substantive objection the White House expressed to the bill — mandatory military detention for accused American Terrorists captured on U.S. soil — was about Executive power, not due process or core liberties. The proof of that — the definitive, conclusive proof — is that Sen. Carl Levin has several times disclosed that it was the White House which demanded removal of a provision in his original draft that would have exempted U.S. citizens from military detention (see the clip of Levin explaining this in the video below). In other words, this was an example of the White House demanding greater detention powers in the bill by insisting on the removal of one of its few constraints (the prohibition on military detention for Americans captured on U.S. soil). That’s because the White House’s North Star on this bill — as they repeatedly made clear — was Presidential discretion: they were going to veto the bill if it contained any limits on the President’s detention powers, regardless of whether those limits forced him to put people in military prison or barred him from doing so. Thanks, Barack Obama.

Jan01'2011: Barack Obama signed the law (NDAA). Now, he just has to kill all the Jedi.

May16'2012: A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the NDAA... The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Barack Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides... "The Government was unable to define precisely what ”direct” or “substantial” “support” means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so."

• Sept'2012: Last week, Judge Forrest made her preliminary ruling permanent, issuing a 112-page decision explaining it... In response to this ruling, the Barack Obama administration not only filed an immediate appeal, but they filed an emergency motion asking the appeals court to lift the injunction pending the appeal.