Fri Dec 16, 2011, 03:20 AM
ProSense (116,464 posts)
Senator Feinstein introduces "The Due Process Guarantee Act"
The NDAA and the Due Process Guarantee Act of 2011
by Steve Vladeck
Well that was fast… With the ink barely dry on the Senate’s passage of the NDAA, Senator Feinstein yesterday introduced on behalf of herself and 13 Senate colleagues (including Republican Senators Lee, Kirk, and Paul) the “Due Process Guarantee Act of 2011.” The title is a bit of a misnomer; what the bill really does is amend the Non-Detention Act (which requires statutory authorization for the detention of U.S. citizens) by adding what would be new 18 U.S.C. § 4001(b):
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.
It won’t come as a surprise in light of my post from Tuesday that I think this legislation would provide a promising solution to the clear statement issue–and a far more meaningful safeguard against abuses of governmental detention authority than anything in the NDAA. Reasonable people will surely disagree about the circumstances in which the government should legally be able to detain U.S. citizens and LPRs without charges–that’s another matter. But it strikes me that the only reason to oppose requiring Congress to speak clearly when it intends to authorize such detention (and to thereby force the difficult constitutional questions that such detention raises) is if one honestly believes both that (1) Congress would provide express authorization (hardly a given, methinks); and (2) as such, we’re better off leaving things ambiguous–and therefore ultimately up to the courts. And for those, like me, who think that there already is a clear statement requirement, the “DPGA” would merely codify that understanding…
Feinstein: Prohibit Indefinite Detention of American Citizens Without Trial or Charge
‘Constitution gives every citizen the basic due process right to a trial on their charges’
Washington—Senator Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, today introduced the Due Process Guarantee Act of 2011, legislation that states American citizens apprehended inside the United States cannot be indefinitely detained by the military.
The Due Process Guarantee Act of 2011 amends 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 who are apprehended domestically.
The Feinstein bill also codifies a “clear-statement rule” that requires 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 excludes citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.
Feinstein said: “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.
“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.
“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.”
The Due Process Guarantee Act of 2011 is cosponsored by Senators 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.).
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Senator Feinstein introduces "The Due Process Guarantee Act" (Original post)
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Response to ProSense (Original post)
Fri Dec 16, 2011, 11:26 AM
ProSense (116,464 posts)
7. NYT editorial: Politics Over Principle
Politics Over Principle
This is a complete political cave-in, one that reinforces the impression of a fumbling presidency. To start with, this bill was utterly unnecessary. Civilian prosecutors and federal courts have jailed hundreds of convicted terrorists, while the tribunals have convicted a half-dozen.
And the modifications are nowhere near enough. Mr. Obama, his spokesman said, is prepared to sign this law because it allows the executive to grant a waiver for a particular prisoner to be brought to trial in a civilian court. But the legislation’s ban on spending any money for civilian trials for any accused terrorist would make that waiver largely meaningless.
The bill has so many other objectionable aspects that we can’t go into them all. Among the worst: It leaves open the possibility of subjecting American citizens to military detention and trial by a military court. It will make it impossible to shut the prison in Guantánamo Bay, Cuba. And it includes an unneeded expansion of the authorization for the use of military force in Afghanistan to include indefinite detention of anyone suspected of being a member of Al Qaeda or an amorphous group of “associated forces” that could cover just about anyone arrested anywhere in the world.
There is no doubt. This bill will make it harder to fight terrorism and do more harm to the country’s international reputation. The White House said that if implementing it jeopardizes the rule of law, it expects Congress to work “quickly and tirelessly” to undo the damage. The White House will have to make that happen. After it abdicated its responsibility this week, we’re not convinced it will.