U.S. Senate Intelligence Committee Chairwoman Dianne Feinstein today introduced a bipartisan Due Process Guarantee Act of 2011, which states that American citizens apprehended inside the United States can’t be indefinitely detained by the military.
This has been a hot topic in recent weeks, as Congress debated a National Defense Authorization Act that had included a provision which would’ve allowed just such indefinite detentions. Per Politico, in order to satisfy the administration and other opponents’ concerns, the final bill says nothing in it may be “construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” The House passed the bill 283-136 on Wednesday; today’s Senate vote was 86-13.
Feinstein, who voted for the bill, apparently wants to ensure this issue doesn’t come up again.
The legislation she introduced today would amend the Non-Detention Act of 1971 by providing that a Congressional authorization for the use of military force does not authorize the indefinite detention, without charge or trial, of U.S. citizens apprehended on U.S. soil. It also would codify a “clear-statement rule” requiring Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents.
The protections for citizens and lawful permanent residents is limited to those “apprehended in the United States” and wouldn’t cover citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.
“The argument is not whether citizens such as Yaser Esam Hamdi and Jose Padilla – or others who would do us harm — should be captured, interrogated, incarcerated and severely punished. They should be,” she said in a news release today. “But what about an innocent American? What about someone in the wrong place at the wrong time? The beauty of our Constitution is that it gives every citizen the basic due process right to a trial on their charges.”
“Experiences over the last decade prove the country is safer now than before the 9/11 attacks. Terrorists are behind bars, dangerous plots have been thwarted. The system is working,” she continued. “We must clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish.”
Her bill’s original cosponsors are Patrick Leahy, D-Vt.; Mike Lee, R-Utah; Mark Udall, D-Colo.; Mark Kirk, R-Ill.; Rand Paul, R-Ky.; Chris Coons, D-Del.; Dick Durbin, D-Ill.; Kirsten Gillibrand, D-N.Y.; Bill Nelson, D-Fla.; Jeanne Shaheen, D-N.H.; Al Franken, D-Minn.; Tom Udall, D-N.M.; and Claire McCaskill, D-Mo.
UPDATE @ 3:23 P.M. FRIDAY: Rep. John Garamendi, D-Walnut Grove, and Rep. Martin Heinrich, D-N.M., today introduced the House companion bill, H.R. 3702.
“Every American deserves their day in court, and this legislation changes existing law to protect our due process rights,” Garamendi said in his news release. “We cannot allow our basic rights to be lost, and there is no legitimate national security reason to deny any citizen in America a trial. We can both keep America safe and maintain our liberties.”
Said Heinrich: “Detainee provisions included in this year’s Defense Authorization and retained in the final Conference Report do not strengthen our national security and are at complete odds with the United States Constitution. It is time we restore the proper balance between individual liberties and national security.”