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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Emptywheel Twitterverse
emptywheel @astepanovich Not if Congress gets its way! Bring on the immunity!!!
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JimWhiteGNV RT @the_intercept: How gun violence compares with "domestic terror" as a threat to Americans: http://t.co/dIgIWQYQdB http://t.co/GmFp7Rr8zc
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JimWhiteGNV @pastordan Time to bake more and put them into protective custody!
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emptywheel @AllThingsHLS It's that kind of cold that makes us resilient at the most important moments. ;p
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emptywheel @astepanovich Right: Sue loudly, 3 months late, as a way to avoid your own liability?
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emptywheel @AllThingsHLS You're going on Twitter where most are on E Coast/MW & claiming 41° is cold? It's been months since some of us have see that
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emptywheel @PGEddington Not least bc this looks counterproductive. @WhiteHouse
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emptywheel @walterwkatz Lovely. Wonder how much one makes for such hackery. @MicahZenko
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emptywheel RT @MicahZenko: AEG hired fmr DHS chief Tom Ridge to say competing NFL stadium in LA would be a terrorist threat. http://t.co/6UT2w0PRg2
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JimWhiteGNV RT @jb8sy: The 'Throwin' Mayoan' Kerwin Bell. @JU_Football “@Ristolable: This is the funniest thing I have ever seen http://t.co/0MbrMSnUt
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emptywheel @TyreJim I thought it was legal so long as you have a half order of fries on the table? @dmataconis
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