- The Washington Times - Thursday, December 6, 2012

Senators had vowed to use the annual defense debate to clear up lingering questions about indefinite detention of U.S. citizens after last year’s go-around — but the bill they cleared this week only added to the confusion.

Those who say the military should be able to detain U.S. citizens without charges indefinitely and those who oppose that ended up voting for the same amendment, and both sides claimed it backed up their stance.

That left even those well-versed in the issue struggling to make sense of the message.

“Your guess is as good as mine,” said Rep. Adam Smith of Washington, the ranking Democrat on the House Armed Services Committee, who wants to see limits on indefinite detention and will be one of the four chief negotiators as the House and Senate try to hammer out a final compromise bill this month.

Last year’s National Defense Authorization Act sparked a major political debate after the government argued that it gave the military the power to detain American citizens indefinitely, even those apprehended on U.S. soil, without ever bringing charges against them.

It has been challenged in court, with one federal district judge striking it down but an appeals court restoring it.

It became a flash point in the Republican presidential primary, with Rep. Ron Paul arguing that the law should be repealed and eventual Republican nominee Mitt Romney defending it.

Amid that confusion, Sen. Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, offered an amendment during the Senate debate this year to try to clean things up and put Congress on record saying American citizens apprehended in the U.S. must have access to the courts.

“We have worked with law professors, we have worked for a year now to get it right,” the California Democrat said. “It’s very clear that you cannot detain an American citizen or a legal resident without charge or trial indefinitely, without an express act of Congress.”

Her amendment said Congress must “expressly” authorize military detention of citizens and immigrants apprehended in the U.S., and seemed to say that prior declarations of war or use of force weren’t sufficient.

But Sen. Carl Levin, Michigan Democrat and chairman of the Armed Services Committee, who says the military should have the chance to detain those deemed to be fighting the U.S., also voted for her amendment.

He said the 2001 vote by Congress authorizing the president to use force in the war on terrorism amounts to an express grant of authority by Congress, so Mrs. Feinstein’s amendment wouldn’t constrain the military.

Mr. Levin said that was backed by the Supreme Court’s 2004 ruling in the case of Hamdi v. Rumsfeld, a complex ruling about an American caught fighting the U.S. in Afghanistan whom the administration wanted held indefinitely.

Mr. Levin said that ruling, combined with the 2001 authorization to use force, amounted to expressed prior authority for the military.

“What the Hamdi court said is it’s inherent in authorizing force that when you are attacked by an armed enemy, you can detain and capture that person attacking you,” Mr. Levin said. “That’s what I said, and I think it’s inherent in the Hamdi case that said the authorization explicitly — that’s their word — explicitly authorized capture and detention when you’re attacked.”

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