EDITOR’S NOTE: With the Senate passage of the “Feinstein Amendment,” supporters of due process have been cheering. The media has been reporting the amendment as “ending indefinite detention.” They’re wrong. At best, the amendment is a constitutional fumble by Feinstein – intended to do something good, but with legal holes so wide it will end up causing even more harm. At worst, it’s a head-fake – rosy language intended to distract you from efforts to oppose NDAA detention powers while not only continuing the practice but affirming others at the same time. Blake Filippi’s analysis clears up the fog.
The proposed language in the 2013 NDAA and the recent Feinstein Amendment do not fix the multiple Constitutional infirmities in section 1021 of the 2012 NDAA. Unfortunately, Congress is now poised to reaffirm the President’s ability to prosecute persons within the USA though military tribunals, potentially allow continued indefinite detention without charge or trial, and do nothing to limit the practice of extraordinary rendition.
The most troubling provisions of section 1021 of the 2012 NDAA provide that the all persons within the USA – including U.S. citizens – whom the President unilaterally determines “substantially supported” the Taliban, Al Qaeda or “Associated forces” may be designated as enemy combatants subject to indefinite detention, extraordinary rendition (the transfer to foreign jurisdiction or entities) or military tribunals. Importantly, there is no knowing and willful requirement to one’s “substantial support.”