Thursday, December 20, 2012

Congress Is Quietly Abandoning the 5th Amendment By Conor Friedersdorf

...News junkies likely know that I'm alluding to a specific law that has passed both the Senate and the House, and is presently in a conference committee, where lawmakers reconcile the two versions. Observers once worried that the law would permit the indefinite detention of American citizens, or at least force them to rely on uncertain court challenges if unjustly imprisoned. In response, Senator Dianne Feinstein tried to allay these concerns with an amendment:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
You'd think the part about American citizens being protected from indefinite detention would be uncontroversial. It wasn't. But the amendment did manage to pass in the United States Senate.

Afterward everyone forgot about it pretty quickly. But not Charlie Savage. He's a journalist at The New York Times. If every journalist were more like him the United States government would be far less able to radically expand the president's unchecked authority without many people noticing.

Here is his scoop:

Lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations.  
Says Adam Serwer, another journalist who treats these issues with the urgency that they deserve:

Of the four main negotiators on the defense bill, only one of the Democrats, Rep. Adam Smith (D-Wash.), opposes domestic indefinite detention of Americans. The Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-Mich.), believes detaining Americans without charge or trial is constitutional, and only voted for the Feinstein amendment because he and some of his Republican colleagues in the Senate convinced themselves through a convoluted legal rationale that Feinstein's proposal didn't actually ban the practice. Both of the main Republican negotiators, House Armed Services Committee Chairman Howard "Buck" McKeon (R-Calif) and Senator John McCain (R-Ariz) believe it's constitutional to lock up American citizens suspected of terrorism without ever proving they're guilty.


I'm told this is the language in the conference report:

 SEC. 1029. RIGHTS UNAFFECTED. Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

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