The Senate appeared to reach a broad consensus late Thursday with a decisive 67-29 vote on Sen. Dianne FeinsteinDianne FeinsteinJustice requires higher standard than Sessions Senate to vote Friday on Trump's defense picks Senate seeks deal on Trump nominees MORE’s (D-Calif.) amendment to prevent the military detention of U.S. citizens.
Sens. John McCainJohn McCainIs McCain confident in Trump? ‘I do not know’ Schumer, Cardin to introduce legislation on Russia sanctions Graham says he will vote for Tillerson MORE (R-Ariz.), Lindsey GrahamLindsey GrahamSchumer, Cardin to introduce legislation on Russia sanctions Graham says he will vote for Tillerson The Hill's 12:30 Report MORE (R-S.C.) and Carl LevinCarl LevinObama to preserve torture report in presidential papers 'Nuclear option' for Supreme Court nominees will damage Senate McCain's Supreme Court strategy leads to nuclear Senate MORE (D-Mich.) — all vocal supporters of the right for the military to detain terror suspects on U.S. soil — made the surprising move Thursday to support Feinstein’s amendment.
The lawmakers only did so, however, after declaring that Feinstein’s amendment did the opposite of what she claimed.
The disconnect between the two sides over Feinstein’s amendment means it’s unlikely to be the last word on military detention in the United States. The fight could continue to drag on for years in all three branches of government.
While the issue is steeped in dense legal arguments, it raises passions on both sides.
Supporters of military detention argue the U.S. cannot stop the fight against al Qaeda even if it comes to U.S. shores. Opponents say the threat of al Qaeda cannot restrict basic civil liberties like due process.
The detention fight does not split down party lines, as more liberal Democratic lawmakers are aligned with libertarian-leaning Republicans against the hawkish wings of both parties.
The detainee debate has gone on for years, but the latest battle is being waged over the text itself of Feinstein's amendment.
It says that military detention of U.S. citizens or permanent residents is prohibited “unless an Act of Congress expressly authorizes such detention.”
For Graham and Levin, Congress has already authorized that military detention. They point to the 2001 Authorization for the Use of Military Force (AUMF) against those responsible for the 9/11 attacks.
Those who support Graham’s arguments say the global war on terror covers U.S. soil, and the military must be able to fight the war against terrorists no matter where they are located.
“The way the amendment was drafted, law of war [military] detention is allowed,” Graham told The Hill.
Feinstein, however, does not believe that the use-of-force authorization would apply to the detention U.S. citizens under her amendment. She brushed aside the caveats offered by her colleagues.
“I was delighted to have their votes, whatever the interpretation,” she told The Hill Friday. “I think the vote was a very big vote.”
The move by Graham and McCain to back Feinstein's amendment came after both Republicans initially had expressed opposition to it. Levin had tried to work with Feinstein on a new "approach," but she did not budge.
Graham told The Hill Friday that the lawmakers studied the case law for two days before the vote, and decided in the end they could back the amendment.
Feinstein and Graham battled over military detention during last year’s defense authorization bill as well, when the Senate sought to insert language codifying the AUMF detention provisions.
In the end, an 11th-hour compromise was reached that said nothing in the bill changed current law on detention and U.S. citizens.
Last year’s compromise highlights the longstanding disagreements between Feinstein and her colleagues that go beyond her new amendment.
The two sides also reach different conclusions about what the courts have said about detaining U.S. citizens.
Graham and his supporters say that the 2004 case Hamdi vs. Rumsfeld shows the AUMF authorized military detention of U.S. citizens.
While the plaintiff in that case was a U.S. citizen, detention opponents say it’s an apples to oranges comparison because he was captured in Afghanistan.
Another case involved Jose Padilla, a terror suspect who was captured on U.S. soil. After two appellate courts reached different conclusions about his indefinite detention, the Bush administration moved him to the federal court system before the Supreme Court weighed in.
Wells Bennett, a visiting fellow at the Brookings Institution and contributor to “Lawfare,” said that both sides are using the Feinstein amendment to try and advance their causes.
“Everyone is fighting against the legal status quo,” Bennett said.
He expressed skepticism about the Levin-Graham interpretation of Feinstein’s amendment. He said a court would likely follow the amendment’s plain text.
But that legal issue is unlikely to be fully resolved unless Congress changed the language or it is taken up in a court case, analysts say.
Chris Anders, a senior legislative counsel at the American Civil Liberties Union, said the ambiguity in Feinstein’s measure is raising concerns that an administration could still use the law for military detention on U.S. soil, despite Feinstein’s intentions.
“That doesn’t mean that Sen. Graham is right, but it does mean that the amendment is confusing and badly drafted enough that it’s creating significant uncertainty as to whether it does anything to eliminate any detention authority in the United States,” Anders said.
The Obama administration said last year that it would not detain any U.S. citizens in military custody.
The ACLU and others have warned that future administrations could use the power of indefinite military detention even if the Obama administration does not.
Civil liberties groups, including the ACLU, said they were disappointed with the amendment from Feinstein, a lawmaker they tend to side with on detention issues.
The groups released a letter Thursday saying her amendment “fails to address a central concern” with military detention, because it only covers citizens and permanent residents and not “all persons.”
Feinstein said on the floor Thursday that she supported covering all persons, too, but she crafted the provision to get the “maximum” votes in the Senate.
While the Feinstein language is now part of the defense authorization bill — which is likely to pass next week — the provision still could be changed in the House-Senate conference committee.
House Armed Services Chairman Buck McKeon (R-Calif.) issued a statement after the amendment passed that said he was “committed” to the position the House reached on detention.
Graham also hinted that the House legislation could play a role in the final bill’s text.
“If there’s doubt about our interpretations, there’s an easy fix and we’ll find that in conference,” Graham said.