Senators Paul & McCain Battle Over NDAA 'Indefinite Detention' Language


Senator Dianne Feinstein’s amendment to the 2013 version of the National Defense Authorization Act (NDAA), which was introduced by Republican Senator Mike Lee, passed on the Senate floor in November, and sadly, supported by Senator Rand Paul (R-KY). As a result the amendment actually does nothing to protect anyone from being indefinitely detained without charge or trial. Now the language from the amendment, which has been said to provide Constitutional protections, but doesn’t actually do that, is causing more friction between Paul and Senator John McCain (R-AZ).

While Senators Paul and McCain have had their disagreements before over the indefinite detention section of the 2012 NDAA, Paul took on Senator McCain after the House failed to pass similar language in its bill. The two are now involved in an attempt to resolve the language and Paul has come out swinging.

“The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,” Sen. Paul said in a statement.

“I voted against NDAA in 2011 because it did not contain the proper constitutional protections. When my Senate colleagues voted to include those protections in the 2012 NDAA through the Feinstein-Lee Amendment last month, I supported this act,” Sen. Paul continued. “But removing those protections now takes us back to square one and does as much violence to the Constitution as last year’s NDAA. When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.”

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“Saying that new language somehow ensures the right to habeas corpus – the right to be presented before a judge – is both questionable and not enough’” the Senator said. “Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole.”

“Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience,” Paul declared. “When I entered the United States Senate, I took an oath to uphold and defend the Constitution. It is for this reason that I will strongly oppose passage of the McCain conference report that strips the guarantee to a trial by jury.”

While I applaud Senator Paul for his desire to be Constitutional, I have to point out that the support he gives to the Feinstein amendment is not Constitutional either.

McCain criticized Paul earlier this month for attempting to filibuster the bill, saying that it was, in essence, aiding Senate Majority Leader Harry Reid’s case for filibuster reform.

“I find it disappointing that one member of the United States Senate feels that his particular agenda is so important that it affects the lives and the readiness and the capabilities of the men and women who are serving in the military and our ability to defend this nation,” McCain told Roll Call. “I think it’s hard to answer to the men and women in the military … with this kind of behavior, but I will leave that up to the senator from Kentucky to do so.”

As I pointed out here, there is a huge problem with the amendment. the specific language of the amendment 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.”

Rep. Justin Amash (R-MI) said, “Well, that Act of Congress is the 2012 NDAA, which renders the rest of the Feinstein amendment meaningless.”

Amash also said, “The Feinstein amendment to the 2013 NDAA does NOT protect you from indefinite detention without charge or trial. In fact, it explicitly permits such detention so long as the detention is approved by an Act of Congress . . . such as the 2012 NDAA.”

Here are several issues. First it does not cover everyone in the United States. Second, this does not address passage of 2012 NDAA. Third, since when does Congress have the authority to authorize the detention of anyone in the U.S. without charge or trial, let alone a citizen or permanent resident? I don’t recall the Constitution granting them that power.

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