Senator Mike Lee (R-UT) has issued a press release lauding the Feinstein Amendment passed late last week. In it, he responds to criticisms of the amendment – some of which were covered in our analysis of the amendment in our recent article “The Feinstein Fumble: Indefinite Detention Remains.”

Senator Lee asserts that the Feinstein Amendment ensures “that American citizens and permanent legal residents apprehended on American soil may not be detained without charge or trial.” To support this claim, he refers specifically to the portion of the Feinstein Amendment that states; “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.”

Senator Lee claims that the 2012 National Defense Authorization Act (NDAA) and the 2001 Authorization to Use Military Force (AUMF) do not provide express authorization for indefinite detention, the thus, Feinstein Amendment prevents such indefinite detention. Senator Lee asserts that section 1021 of the 2012 NDAA does not provide specific authorization for indefinite detention because of  the following savings clause:  “Nothing in [the NDAA] shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”

The first problem with the Feinstein Amendment is that it specifically states that Congress may authorize indefinite detention. Senator Lee should now answer the glaring question the Feinstein Amendment raises; Does he believe Congress possesses the Constitutional authority, absent a vote suspending Habeas Corpus (as required by Article I, Section 9 of the Constitution), to authorize the President to indefinitely detains persons within the United States? Senator Lee’s advocacy for the Feinstein Amendment – stating that Congress may have such powers – indicates he might.

Next, Senator Lee’s press release is inaccurate in the representation that the 2012 NDAA (and the 2001 AUMF) do not expressly authorize the indefinite detention of persons within the USA, and concluding that accordingly, the Feinstein Amendment bans such indefinite detention.

Section 1022 of the 2012 NDAA requires the president to detain members of al-Qaeda, the Taliban, and individuals directly responsible for “belligerent actions” against the United States. Section 1022 specifically excludes U.S. citizens and legal aliens only from the REQUIREMENT to indefinitely detain in military custody, but DOES NOT PREVENT the administration from doing so. (see additional analysis of this section and more HERE and HERE).

Simply put, the only protection a US Citizen has in Section 1022 is that there is no requirement for indefinite detention. It’s up to the good graces of the president.

On the other hand, section 1021 of the 2012 NDAA specifically authorizes indefinite detention of all persons that “substantially supported” Al-Qaeda, the Taliban, or “Associated Forces.” Unlike section 1022, section 1021 does not provide for any specific exceptions at all.

This plain language of both sections 1021 and 1022 expressly authorizes the indefinite detention of all persons within the USA – including U.S. citizens.

Yet, Senator Lee reasons that because Section 1021 “preserves existing laws and authorities” regarding the indefinite detention of persons captured within the United States, it does not expressly authorize indefinite detention. And thus, Senator Lee opined, the Feinstein Amendment further bans such indefinite detention.

Respectfully, the assertion that section 1021’s preservation provisions mitigates its specific indefinite detention authorization is likely incorrect. Instead, the existing laws and authorities actually indicate that U.S. citizens and others captured within the United States may be designated as enemy combatants subject to indefinite detention. In the WWII case of ex parte Quirin, the Supreme Court held that German saboteurs captured within the United States, including a U.S. Citizen, could be designated enemy combatants subject to military tribunal. Perhaps most illustrative of the limited protections in the NDAA’s preservation of existing law and authorities is that the Fourth Circuit Court of Appeals ruled in the 2005 Padilla case that a U.S. citizen captured within the U.S. may be indefinitely detained by the President, subject only to the Hamdi requirement of an opportunity to contest enemy combatant status before a neutral decision-maker. Hamdi has since been amended by the Boumediene requirement of extremely limited Habeas review.  The Fourth Circuit is the highest post-9/11 court to decide whether those captured within the U.S. may be designated enemy combatants subject to indefinite detention. During Senate floor debate on the 2012 NDAA,  Padilla was continually cited as authority for this this chilling proposition.

In fact, Southern District of New York Judge Catherine Forrest’s incredibly reasoned 2012 decision staying enforcement of section 1021 of the 2012 NDAA found that it did authorize persons in the USA to be designated enemy combatants subject to indefinite detention.

The preservation of existing law and authorities in section 1021 of the 2012 NDAA actually support the indefinite detention of persons within the U.S., and do not appear mitigate section 1021’s specific authorization for such indefinite detention. Thus, the Feinstein Amendment likely does not prohibit the indefinite detention provisions of the 2012 NDAA. Indeed, in response to the Feinstein Amendment, Carl Levin issued a press release stating that the President’s indefinite detention powers remain.

Even in the unlikely scenario that the Feinstein amendment were to prevent indefinite detention, it would still blatantly fail to do anything concerning the other liberty-stripping provisions of the 2012 NDAA, including the specific authorization for Military Tribunals and Extraordinary Rendition for all persons within the USA. Extraordinary rendition is the process of disappearing someone into the hands of a foreign country or entity, where the captured has no access to the U.S. judicial system to contest confinement or treatment.

The supporters of the Feinstein Amendment should go on the record whether they support these unconstitutional executive War Powers over persons within the USA – including  U.S. citizens – without a Congressional Declaration of War pursuant to Article I, Section 8 of the Constitution, and, more importantly, without an express Congressional suspension of the Writ of Habeas Corpus pursuant to Article I, Section 9 of the Constitution. This important clause strictly limits when such suspensions can be done to times when “in Cases of Rebellion or Invasion the public Safety may require it.”

Bottom line? The Feinstein Amendment does not clearly limit indefinite detention and does nothing to stop military tribunals and extraordinary rendition. There has been no Declaration of War nor “rebellion or invasion” to validate Congress’s purported authorization of these drastic War Powers in the President. It is illegal and must be stopped.

Michael Boldin contributed to this report

Blake Filippi

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