Policy & Strategy

Senate limits detention of US citizens

Senators who have battled for more than a year over military
detention of U.S. citizens nearly all supported an amendment from Sen. Dianne
Feinstein (D-Calif.) Thursday, but the two sides had very different
interpretations of what the provision accomplished.

Feinstein’s amendment, which states that U.S. citizens or
permanent residents shall not be detained without charge or trial, passed the
Senate 67-29, with 19 Republicans joining with most Democrats to pass the bill.

Feinstein said her amendment with Sen. Mike Lee (R-Utah)
would prevent the indefinite detention of U.S. citizens or legal permanent
residents captured on U.S. soil.

The amendment clarified that the law “does not permit an
American citizen or legal resident to be picked up and be held without end,
without charge or trial,” Feinstein said Thursday.

{mosads}Feinstein’s push to change the detention laws was backed by
liberal Democrats and libertarian-leaning Republicans such as Lee and Sen. Rand
Paul (R-Ky.).

But the more hawkish Republicans and Democrats on the other
side of the detention debate — who mostly voted for Feinstein’s amendment — had
a different view of how the amendment applied to military detention of U.S.

Sens. Lindsey Graham (R-S.C.), John McCain (R-Ariz.) and Armed
Services Chairman Carl Levin (D-Mich.) all supported Feinstein’s amendment late
Thursday. They did so, however, only after qualifying that they believed language
in the amendment did not prohibit the military detention of U.S. citizens,
because the amendment gave an exception for acts of Congress that specifically
authorize such detention.

Graham and Levin argued that the 2001 Authorization for the
Use of Military Force (AUMF) passed by Congress grants the military the power
to detain U.S. citizens who are part of al Qaeda, and that remains the case
with the Feinstein amendment.

“Unlike criminal law, where you’re trying to find justice
for victims, this is about winning a war,” Graham said.

“When the enemy is able to turn one of our own, the last
thing in the world we should do is deny ourselves the ability to interrogate
that person in a way to help us win the war and keep us safe.”

Sen. Kelly Ayotte (R-N.H.), who has been one of the
strongest backers of military detention for terror suspects, did not join
McCain and Graham to support Feinstein’s amendment.

Thursday’s vote is the latest wrinkle in a long fight in
Congress over indefinite detention of terrorism suspects. As is the case with
Feinstein’s measure, the debate has often seen the two sides reaching differing
interpretations over the meaning of the same law.

Supporters of military detention argue that the case law on
detention is clear, pointing to the 2004 Hamdi vs. Rumsfeld Supreme Court case
as proof the U.S. military has a right to detain U.S. citizens who have joined
al Qaeda.

But opponents disagree with that interpretation because the
American suspect was captured in Afghanistan. They argue the case law on the
AUMF is not so clear-cut that it would be considered under the amendment’s

In supporting the amendment, Graham said that he supported
trials for even the worst terrorists, but he added that the military needed to be
able to interrogate and gain information from enemy combatants.

Graham and his allies said that preventing the military from
detaining terror suspects would present the unbalanced option of either killing
the suspects or letting them go free, but nothing in between.

Earlier on Thursday, it did not appear that Graham, Levin
and McCain would support the Feinstein amendment.

“Of course I’m opposed,” McCain told reporters on Thursday
when asked about the amendment.

Levin had said he was hoping to find a different “approach”
with Feinstein, but she said she did not intend to change the amendment.

Still, while Feinstein was pleased with the outcome
Thursday, civil liberties groups expressed disappointment at the provision adopted
to the defense authorization bill.

A coalition of advocacy groups, including the American Civil
Liberties Union and Human Rights Watch, said that the amendment “fails to
address a central concern raised in the public debates: the specter of the
military being used to police our streets and detain individuals on U.S. soil.”

The groups opposed referring to U.S. citizens and permanent
residents rather than persons.

Feinstein said she would like to have the amendment include
all persons on U.S. soil, but said that she had to go with could get the votes
to pass the measure

In arguing for the amendment, Feinstein said it would
prevent repeating incidents in U.S. history like the Japanese-American internment camps
during World War II, where innocent citizens were detained indefinitely.

— Ramsey Cox contributed to this story.

Tags Carl Levin John McCain Kelly Ayotte Lindsey Graham Mike Lee
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