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.

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JimWhiteGNV RT @TimothyS: "We have no way of knowing how people like [Alexander] formed their business relationships..." Me, in NYT last year: http://…
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emptywheel All these privacy NGOs don't know whether they're endorsing contact chaining on location or not. That's ... rash.
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emptywheel Again, Leahy's USA Freedom retains "connection" chaining--which has never been publicly defined. Why legislate blind? http://t.co/KqEa9AkAeT
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JimWhiteGNV Good plan. RT @Casual_Obs: @JimWhiteGNV yeah, we're leaving asap.
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JimWhiteGNV RT @smsaideman: @JimWhiteGNV hey, I was offended when Alberto Gonzalez was teaching at TTU.... because he was TEACHING!
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JimWhiteGNV So fear mongers get to profit directly from their fear mongering and war criminals can become educators. The US is hitting rock bottom.
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emptywheel @LysaMyers Dunno. Assume OKC measures it, tho.
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JimWhiteGNV How in the world is someone who specialized in night raids and hiding prisons from ICRC a good candidate to run an educational system?
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JimWhiteGNV Holy shit! Notorious war criminal McRaven to be next University of Texas Chancellor? Just wow... http://t.co/eCHuCC46c7
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emptywheel @ashk4n Right: we don't (at least I don't) know whether Internet dragnet moved to 12333 or FBI dragnet or both. But "end bulk"!
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emptywheel RT @ashk4n: Even though 2 sections call for 'Prohibition on bulk collection' in new #USAFreedomAct, #EO12333 collection persists http://t.…
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emptywheel @KevinBankston I have said bill is an improvement--except for connection chaining which may be vast expansion. But this lets DOJ break law
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