UPDATE: Senators Seek To Formalize Obama’s Indefinite Detention Loophole

Author: November 29, 2012 3:34 pm

Should fictional Sgt. Nicholas Brody have been exempted from the NDAA? (credit: Showtime Promotional Image)

Update: Update: The Senate passed the measure to exempt U.S. citizens and lawful residents from indefinite detention 67-29 on Thursday night. It will also need to pass the House. The Senate also reapproved a measure to prohibit detainee transfers out of GITMO.

Six Democrats and five Republicans are backing President Obama’s existing rule that exempts U.S. citizens from indefinite detention.

The bipartisan group of U.S. Senators introduced an amendment on Wednesday seeking to permanently override the most controversial provision contained within the National Defense Authorization Act (NDAA) for Fiscal Year 2012, reports the Huffington Post. In the eyes of many civil rights supporters, allowing the military to indefinitely detain terrorism suspects without formal charges or a public trial jeopardizes fundamental Constitutional protections contained within the Bill of Rights.

The proposed amendment would clarify that U.S. citizens and legal residents cannot be held in military custody without trial, even when they are suspected of aiding and abetting al-Qaeda.

Amendment co-author Sen. Dianne Feinstein (D-CA) said failing to approve the amendment would put the country on a path to repeat the shame of World War II’s Japanese internment camps.

The Senators actually are seeking to make permanent NDAA restrictions President Obama has already put in place. Shortly after signing the NDAA (with objections) on Dec. 31, 2011, Obama released rules for implementing Section 1022 of the law. These rules specifically state that indefinite military detention of U.S. citizens or lawful permanent residents is not allowed by the Act.

The Presidential Policy Directive reads:

Section 1022’s military custody requirement applies only to non-U.S. citizens who are closely linked to al-Qaeda and have participated in planning or carrying out an attack or attempted attack against the United States or our coalition partners.

Since Obama’s interpretation of policy may not endure through future administrations, Sen. Feinstein and the 10 others are aiming to permanently preserve the rights of U.S. citizens and nationals to a reading of charges and a speedy trial.


The other Senators co-sponsoring the bill are Kirsten Gillibrand (D-NY), Rand Paul (R-KY), Dean Heller (R-NV), Mark Udall (D-CO), Jon Tester (D-MT), Mike Lee (R-UT), Chris Coons (D-DE), Susan Collins (R-ME), Mark Kirk (R-IL) and Frank Lautenberg (D-NJ).

Obama’s Presidential Policy Directive further weakened the indefinite detention provision by saying that it also does not apply to other circumstances, including:

  • When placing a foreign country’s nationals or residents in military custody will impede counter-terrorism cooperation
  • When a foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody
  • When the suspect is also being held on charges other than terrorism offenses
  • When transferring a suspect to military custody will interfere with obtaining an individual’s cooperation or confession.

Sen. Lindsey Graham (R-SC), a former military lawyer, says the proposed NDAA amendment poses a danger:

What they’re trying to do is say if you can find an American who is trying to help al-Qaeda, you can’t hold them for military interrogation to find out what they’re up to. You have to read them their rights and treat it as a common crime … I think it will make us less safe. I think what you would actually be doing is actually encouraging the enemy to find American citizens. You would make an American operative much more valuable to al-Qaeda.

While it’s hard to support any rollback of Americans’ civil liberties, Sen. Graham’s words may give you pause for thought, especially if you are familiar with the fictional case of Sgt. Nicholas Brody, a lead character in Showtime’s “Homeland” series.

Sgt. Brody, played by Damian Lewis, was turned into a terrorist during his eight years of captivity in Iraq (obviously, a far-fetched scenario). CIA agent Carrie Mathison, played by Claire Danes, correctly intuits that Brody is an undercover operative for al-Qaeda. Early in season two, the CIA secretly detains Brody to “flip him” and obtain his assistance in stopping a terrorist plot against the U.S.

Graham’s argument is: If Carrie didn’t have the option to detain Brody without charges, she wouldn’t have gained critical intelligence about a pending attack on American soil.

How the rest of the story unfolds, for Brody and for real-life Americans, remains to be seen.

If you have a strong opinion on the NDAA/indefinite detention issue, please comment below, or email your Senator.

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