- 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 Ron Paul arguing that the law should be repealed and eventual Republican nominee Mitt Romney defending it.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.”

Mrs. Feinstein’s amendment passed by a vote of 67-29, and then the underlying defense policy bill passed by a 98-0 vote.

The White House has threatened to veto the bill, arguing in particular against restrictions that lawmakers placed on the administration’s ability to transfer detainees from the prison at Guantanamo Bay, Cuba, to the U.S. or other countries.

The same language has been in previous years’ bills, and the White House had let them go — but this time it is signaling a bigger fight.

“Since these restrictions have been on the books, they have limited the executive’s ability to manage military operations in an ongoing armed conflict, harmed the country’s diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security,” the White House Office of Management and Budget said in its policy statement.

One congressional aide said Mr. Obama also presided over a fierce internal battle on indefinite detention last year when he signed the National Defense Authorization Act, with Cabinet officials coming down on both sides of the debate.

Before it reaches Mr. Obama this year, the defense bill must survive a House-Senate conference, during which both sides generally agree on the Guantanamo policy but differ on the indefinite detention of U.S. citizens.

The House bill, written by Republicans, does not limit the military’s authority. An amendment written by Mr. Smith and Rep. Justin Amash, Michigan Republican, that would have clearly excluded the U.S. from indefinite military detention, failed in the House debate.

As the ranking Democrat on the House committee, Mr. Smith will have a seat at the negotiating table and get a chance to re-argue his case, but he likely will have to battle Mr. Levin, House Armed Services Committee Chairman Howard P. “Buck” McKeon, and Sen. John McCain of Arizona, the ranking Republican on the Senate committee.

Adding to the confusion is civil-liberties groups that said that while they support Mrs. Feinstein, they wish she had gone further to include all people apprehended in the U.S., not only citizens and legal permanent residents.

“The Fifth Amendment and all the important due process rights are always provided to persons, and not just to citizens or green card holders,” said Christopher Anders, legislative counsel at the American Civil Liberties Union. “There’s been this long principle that basic due process rights are available to everyone in the United States.”

But Mrs. Feinstein said she was “dismayed” at the criticism, and said she couldn’t have gotten her amendment through the Senate if she’d included all people, not just citizens or legal immigrants.

She said she hopes the Senate will insist on its stance.

“Not to do this at this stage to me is a total collapse, which would be unacceptable,” she said.