Feinstein Tries Again to Fix the Detainee Provisions

Kudos to Dianne Feinstein for trying to eliminate the President’s ability to indefinitely detain (and kill?) American citizens. This time, she’s trying a free-standing bill titled the Due Process Guarantee Act of 2011. It says,

(1) 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.

(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.

The language seems sound enough to me. And given that this wouldn’t constrain the President’s ability to detain (or kill) Americans in Yemen, the Obama Administration might not put up as big of a fight as it did with the detainee provisions (though I suspect they would fight it, because of all the other things that rely on detention language–they’d have to rewrite a bunch of OLC memos).

Of course all that assumes this would be passed before President Newt takes over; he’d never sign something like this.

But the other thing is that DiFi has a habit of introducing very simple language and getting pushed around by the Executive, effectively letting the President tweak such language out of existence (see also her “exclusivity provision” in the FISA Amendments Act).

I think if she could get a vote, with this language, she might just win.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

19 replies
  1. Kris says:

    i dont like the
    “apprehended in the united states” (does the constitution not apply to me if i am living overseas teaching english? which i am!) but if that is the languge of compromise needed to pass… its better than nothing right?

    i aslo don’t like the
    “unless an Act of Congress expressly authorizes such detention.”
    allowing this clause means that if the president interprets any of the previous AUMFs (like the one passing now) as giving him the express authorization, then this law is moot the moment it passes. lets face it with the wide interpretations he is already using to bolser his executive power this is not far-fetched.

  2. MadDog says:

    I guess I would quibble with the last part of Senator Feinstein’s Paragraph 1 where she ends with this:

    “…unless an Act of Congress expressly authorizes such detention…”

    It seems to do a couple of things:

    1) Intimates that Congress can invalidate Habeas Corpus by an Act of Congress when I think many legal folks would demur that since the Suspension Clause of Article I is in the Constitution, an Act of Congress is insufficient to negate it. Per Wiki:

    “…The Suspension Clause of Article I does not expressly establish a right to the writ of habeas corpus; rather, it prevents the U.S. Congress from restricting it. There has been much scholarly debate over whether the Clause positively establishes a right under the federal constitution, merely exists to prevent Congress from prohibiting state courts from granting the writ, or protects a pre-existing common law right enforceable by federal judges…”

    2) Senator Feinstein would have been better off ending Paragraph 1 before the “Act of Congress” out. A definitive statement is made much less definitive when qualified by such an exception.

    3) Should Senator Feinstein’s bill ever become law (a big doubt given our Congresscritters’ aversion these days to support of civil liberties), as written, Senator Feinstein’s bill might actually encourage Congress to explicitly require “detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States” in future AUMFs.

    Other than that, I agree something is better than leaving things where they stand today.

  3. bmaz says:

    @MadDog: Well, I suppose Congress could define terrorism on US soil as “rebellion” and so suspend it. Not sure it would hold up, but It would at least be arguable.

  4. phred says:

    Kudos might be in order if she hadn’t voted for the damn bill to begin with. This smacks of more campaign posturing than anything else. Feinstein doesn’t have much credibility when it comes to civil liberties at this stage of her depressing career.

  5. MadDog says:

    @bmaz: Given our past history with stuff like the Japanese-American internment during WW II and then following with McCarthyism in the 1950s, I suspect you are right.

    If there were to be a successful incident, something like a successful version of the attempted Times Square bombing or a radioactive dirty bombing by a US citizen, I wouldn’t doubt that suspension of Habeas Corpus and indefinite detention without trial could easily become law of the land.

  6. pdaly says:

    Ok, so what does the US Supreme Court think of all of this?

    Or do they wait until someone with standing brings to the court their concerns about the unconstitutionality of indefinite detention of US citizens without trial?

    Are the only citizens with standing those that will be taken into indefinite detention without right to trial?

  7. P J Evans says:

    @pdaly:

    Are the only citizens with standing those that will be taken into indefinite detention without right to trial?

    I’d say that the way things have been going, the answer will be ‘yes’.

  8. JohnLopresti says:

    I liked the 1st criticism from the teacher who is teaching outside of the united states. Certainly the senate majority leader could work to add some references to existing protections for u.s. persons who are engaged in overseas employment situations. Something about the stark simplicity of the new draft bill senator Feinstein is proposing gives the impression that it would relieve a measure of anxiety at Mr. Panetta’s office for the clarification the draft bill seeks to provide in the aftermath of the preceding defense authorization budget bill that passed, if congress now can manage to find a way to pass some form of the Feinstein u.s. citizens due process guarantee legislation. there’s been a cauldron of the usual rhetoric recently like senator Lindsey Graham’s ‘holy hell is gonna (do such and such [in SC and elsewhere, [you just wait and see}]’; but it seems to me congress is continuing to try to mature its own measure of participation in the development of the relatively new ways of looking at what terrorists do. The senate really could take the fore with this more thoughtful approach, as is senate tradition. and I do not know how senator Graham found holiness in the place he was referencing, but I am sure we will find out from speeches by his Republican associates during the national elections next year; the field of candidates, many of whom are named Newt, seem to have unitary executive written all over their perspectives. Congress needs to set a framework for the next presidency; and senator Feinstein’s new effort is a wise exercise of the advise and consent responsibilities.

  9. Bill Michtom says:

    The legitimate version?

    (1) 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.

    (2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.

  10. Bill Michtom says:

    This?

    (1) 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.

    (2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.

  11. tw3k says:

    My simple, humble, opion is to retire the two AUMFs.

    If we must we must extend, use OLC.

    writ not into stone.

    There lay we.

  12. orionATL says:

    understand,

    diane feinstein is running for re-election in 2012.

    this is another of her efforts to cover her fat-cat, authoritarian lovin’ ass.

    if californians are fools enough to re-elect her, and i suspect they will be, she will immediately return to 2001-2010 form.

    senate democrats, like feinstein, richard levin, for example, and his pal, schumer, not to mention leahy and others, have a patent on supporting one issue (levin-“anti-wallstreet”) while f***ing the nation over on others (e.g., detention in levin’s case).

    the only way out for this nation is to

    -create a replacement for the democratic party

    or

    – actively work to see that obama is not elected

    and

    – actively work to see that the feinsteins, levins, schumers, nelsons,et al. are systematically dis-elected.

    any notion that this nation can move out of its accelerating retrograde economic and civil liberties mode,

    toward the future it could and should own,

    without severely disciplining/pruning the dead wood in the democratic party, especially the senate,

    is a misplaced hope.

    if the right wing wins all, temporarily, as a consequence, so be it.

    let the citizens who voted for them, and all who previously failed to act to purge the democratic party, live with the consequences.

    the only hope for this nation’s future, is to purge the democratic party of its old leaders, like feinstein and many other senate democratic barnacles,

    and of its fake leaders, like president obama.

  13. P J Evans says:

    @orionATL:

    if californians are fools enough to re-elect her, and i suspect they will be, she will immediately return to 2001-2010 form

    It may depend on who else is on the ballot, and how crazy they are. Personally, I’d advise her not to run, based on her age and her performance in the last term (or two).

  14. Andre says:

    I keep going back to that Pledge of Allegiance the kids say in school each day, “….with liberty and justice for all.” Would an appropriate grassroots protest against the abomination of this bill be parents everywhere telling their school departments that they don’t want their kids pledging to a big fat lie? It would certainly call attention to the abomination.

  15. Mary says:

    I’m not sure about the language. Isn’t the language in the current dastardly deed “capture” rather than “apprehend?”

    And isn’t that an act of Congress that does allow for the detention?

    I haven’t spent enough time with any of it to do real statutory construction on it, but I don’t think this is the language I’d have been looking for in a serious attempt to change the baseline, although maybe in an attempt to be able to claim, going into elections, that *I tried*

    Is there language expressly referring to “notwithstanding …” the current detainee act provision? Is there language reconciling that for purposes of the two acts apprehend and capture shall be deemed to mean the same? I think “apprehend” could be construed to mean only those initially and originally taken through legal process or law enforcement wings, while captured could be deemed to mean those initially taken by military action, so a court could reconcile the two as meaning only that, if the Gov originally took custody of the person by law enforcement apprehension, they could not be detained without charge or trial, while leaving in place the ability to initially seize the person by military means and then continue to hold them. I’d have to sit down and work through the full statutes and reference statutes etc. to have a better feel, but off the cuff I’d say the language isn’t what it could be for a serious effort.

Comments are closed.