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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bmaz @KellyFlood3 I have come to accept that my dog will be more important in internet life, despite a decade or more, than I will. Oh well!
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bmaz @jilliancyork Woof!! Yikes is missed http://t.co/ujHOwJ0EQs
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JimWhiteGNV Three Americans Are Killed in a Shooting at Kabul Airport , via @nytimes http://t.co/5CLD6I2i50
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bmaz @emptywheel A sterling, though not quite gold, point you make.
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JimWhiteGNV @LeslieMolony Yeah. Pretty sure that was yesterday's rat that she let age a while.
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bmaz RT @ColMorrisDavis: @bmaz I agree.
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bmaz RT @Sunshine2015K: @bmaz Recall Petition filed against Snohomish County Prosecutor 4 misappropriation of public funds; residents fed up w/c…
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bmaz If there is a dumber show about law on popular TV than "How to Get Away With Murder", it is hard to imagine what it could possibly be.
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emptywheel @HinaShamsi In retrospect, writing GWOT Finding to permit CIA to do whatever they want w/detainees, including torture might not @Krhawkins5
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emptywheel @bmaz Well, he'll be sure to use those same steak secrets against me if he ever tries to prosecute. There's precedent, you know.
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emptywheel RT @MikeScarcella: Chicago prosecutors drop drug conspiracy charges against more than two dozen defendants in ATF stash-house stings http:/…
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bmaz @emptywheel There is no accounting for taste. Anywhoo, you cannot inquire into "steak secrets" according to my friend the Clap.
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