Friday, 30 November 2012 14:30

Feinstein-Lee NDAA Amendment Passes, But Is It Enough?

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Naive. That's the word used by the Wall Street Journal to describe attempts by a handful of senators to outlaw the indefinite detention of Americans under key provisions of the National Defense Authorization Act (NDAA).

On Thursday, by a vote of 67-29, the Senate agreed to such a measure, an amendment to the NDAA co-sponsored by 18 senators including Diane Feinstein (D-Calif.), Mike Lee (R-Utah), and Rand Paul (R-Ky.).

The purpose of the amendment was “to clarify that 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.”

Speaking in support of the amendment, Senator Feinstein said:

The beauty of our Constitution is that it gives everyone in the United States basic due process rights to a trial by a jury of their peers. That is what makes this nation great. As Justice Sandra Day O'Connor wrote for the plurality in Hamdi v. Rumsfeld, "As critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

Senator Lee also promoted passage of the measure by calling upon his colleagues to recall the civil liberties that undergird the Constitution:

Senator Feinstein and I have worked closely together over the course of the past year to craft what we believe represents a very prudent course in protecting both our nation and our liberties at the same time. Security is important, and precisely because it's important, it must not be acquired at the expense of our individual liberty. It may well be said that government's most important basic responsibility is to protect the liberties of its citizens. Our nation has fought wars on American soil and around the world in defense of individual liberty. And we must not sacrifice this most fundamental right in pursuit of greater security, especially when we can achieve security without compromising liberty. The Feinstein-Lee amendment does precisely that.

We must stand behind our 225-year-old founding document as it's been amended to ensure our liberty isn't taken away from us, to give us a path to providing for our security without jeopardizing the freedom that our American citizens cherish so much and have fought so hard and so long to protect. Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's great constitutional values. This amendment, the Feinstein-Lee amendment, protects those values.

Not everyone agrees, however.

The Wall Street Journal, for example, also invokes the Hamdi ruling as evidence that “citizenship of a member of a foreign army is irrelevant during wartime. Anyone who takes up arms against the U.S., fails to wear a uniform and targets civilians is an unlawful enemy combatant regardless of citizenship.” The explanation continues:

This question last reached the Supreme Court in the 2004 case of Louisiana-born al Qaeda terrorist Yasser Hamdi. The Court said that Hamdi deserved a habeas corpus hearing to challenge his detention, but it reasonably declined to equate his predicament with that of a domestic criminal.

With its strict rules on surveillance, the U.S. is already something of a safe haven for people who wish to kill innocents. Exempting U.S. citizens from terrorist detention procedures would exacerbate the problem by giving al Qaeda further incentive to recruit inside the U.S. Remember that al Qaeda cell in the Yemeni community near Buffalo that was exposed in 2002? The Paul-Lee-Feinstein amendment would encourage more such recruitment.

Strict rules on surveillance? Perhaps the Wall Street Journal is unfamiliar with the frenetic pace of the growth of the domestic surveillance state. As The New American has chronicled, Congress, the president, and the courts have colluded to exempt the National Security Agency (NSA), the Department of Homeland Security (DHS), and other arms of the sprawling surveillance apparatus from the Fourth Amendment’s prohibition on unwarranted searches.

Such constant surveillance by the unblinking eye of Big Brother has made the United States unsafe for “innocent Americans” as much as for anyone with nefarious goals.

Mother Jones also sees flaws in the Feinstein Amendment.

About a year ago, President Barack Obama signed the 2012 National Defense Authorization Act promising not to use Congress’ authorization of war against Al Qaeda to deny American citizens suspected of terrorism a fair trial by placing them in indefinite military detention. Senators, deadlocked over whether or not the Constitution allows such detention, agreed to adopt an amendment that left unanswered the question of whether Americans could be detained without trial. This year, Feinstein and Lee think their amendment blocking such detention for American citizens and legal permanent residents can pass.

Not all civil liberties groups however, are supporting the effort. That’s because they think anyone on American soil should be given a trial if accused of a crime, given that the Constitution protects “persons,” rather than “citizens.” The Feinstein-Lee amendment is “inconsistent with the constitutional principle that basic due process applies to everyone in the US,” says ACLU legislative counsel Chris Anders. Not only that, but Anders worries that the amendment could be construed to actually imply that the government has the constitutional authority for such detention.

Therein lies the rub. In its guarding of civil liberties, nowhere does the Constitution restrict those protections to “citizens.” As Anders accurately records, “persons” — all persons — are by their very nature afforded the same rights as individuals, regardless of nationality.

Finally, the Feinstein-Lee Amendment fails to address the most invasive aspect of the mortal malady that is the NDAA — the placement of the American military at the disposal of the president for the apprehension, arrest, and detention of those suspected of posing a danger to the homeland (whether inside or outside the borders of the United States and whether the suspect be a citizen or foreigner). Giving the president that power is nothing less than a de facto legislative repeal of the Posse Comitatus Act of 1878, the law forbidding the use of the military in domestic law enforcement.

It is this last bit of Stalinist-style authoritarianism that is the NDAA’s true threat to liberty. While the Feinstein Amendment buttresses the right to a trial for citizens and permanent residents, it does nothing to prevent their apprehension. Denial of habeas corpus (or a trial) comes later; it is the delirium, not the fever, in a manner of speaking.

Put simply, Americans would not need to worry about being held without charge if the president was not authorized in the same act to deploy the armed forces to round up the “suspects” and detain them indefinitely. Being apprised of the laws one is accused of having violated is important, but it’s the detention and the manner of it that must be of more immediate concern to those who are concerned about the new world order being defined by the NDAA.

While the passage of the Feinstein Amendment is laudable in that it is at least a step away from absolute totalitarianism, its restriction to “citizens and lawful permanent residents” of the Constitution’s protections of civil liberties and its failure to abolish the president’s right to deploy the military to arrest suspects reduces it to mere sound and fury signifying nothing but the senators’ failure to show fidelity to their oath of office.

Photo of Diane Feinstein from 2009: AP Images

Joe A. Wolverton, II, J.D. is a correspondent for The New American and travels frequently nationwide speaking on topics of nullification, the NDAA, and the surveillance state. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .


  • Comment Link John Adams Ghost Sunday, 02 December 2012 23:27 posted by John Adams Ghost

    “[Citizenship] of a member of a foreign army is irrelevant during wartime. Anyone who takes up arms against the U.S., fails to wear a uniform and targets civilians is an unlawful enemy combatant regardless of citizenship.”

    Nice thought. Bad idea. Why? Because if one citizen is perceived therewith, there is nothing to stop it from being applied to all citizens, even by indirect affiliation. For example, Mr. X received an email from Mr. Y, who once sold some ammo to Mr. Z, who sold it illegally to Mr. A, who is a citizen of the United States, and a member of a foreign army, who has been affiliated with the Taliban. Bam. Mr. X is suddenly under suspicion and can be detained.

    The paranoia is ridiculous.

  • Comment Link eric d meyer Saturday, 01 December 2012 14:28 posted by eric d meyer

    Read the amendment! It says: The Congressional authorization...shall not be interpreted to authorize the detention without charge or trail of a United States citizen blah blah blah and then: unless expressly authorized by an act of Congress! Get the joke? The amendment pretends to protect your rights as an American citizen... And then authorizes Congress to take them away! Congress takes with one hand what it gives with the other! And so, like the AUMF & NDAA 2012, the NDAA 2013 is a massive abdication of Congressional authority to oversee the executive branch & put limits on its sovereign authority to wage war. And since the US courts (The Supremes & DC Circuit) refuse to intervene, the executive branch now rules by virtual dictatorship over the war on terror! And can indefinitely detain without charge or trial or even assassinate anybody (including US citizens! like Jose Padilla) accused without proof of harboring sympathies with alleged terrorists or hostilities against the US government! Plus, the AUMF & NDAAs put no limits in space & time on that exceutive authority & doesn't define what it would take to decalre the war over. So what we're looking at is a permanent state of exception or state of martial law that lasts as long as the White House, the US Defense Dept,. & the CIA want it to! Which could be basically forever...

  • Comment Link R Jensen Saturday, 01 December 2012 12:03 posted by R Jensen

    Our rights come from God, not the Constitution. The Constitution was written to provide a government that protects those rights. The question is, should the Constitution provide protection to non-citizens? No, but at the same time, said government provided for by the Constitution should not violate rights of non-citizens.

  • Comment Link Tionico Friday, 30 November 2012 18:39 posted by Tionico

    Rand Paul addressed the issue of "citizenship/residence" as against "persons", and declared, rightly I think, that the courts would likely uphold an extension of the protections of rights to trial, etc, to all persons within the US. Of course, until there is a non-resident victim and resultant test case, such persons remain unprotected. In spite of this, I believe this is an acceptable start at reeling back the tyrannical spread of totalitarian police state policy we are seeing.

    And a major part of this spreading disease is the policy of involving our own military in imposing law on anyone within out borders. I cannot fathom why, even given a plausible cause of action against an individual under this NDAA law, such persons need to be detained, indefinitely, no charges laid, no recourse, no trial or representation.. what, do these goons think their "cause", this endless and hopeless "war on terror" justifies such conduct against anyone? Even war criminals are often afforded at least some of these rights. You'd think we were under seige by a foreign military power and had to DO SOMETHING

  • Comment Link Jane Scroggins Friday, 30 November 2012 18:36 posted by Jane Scroggins

    Probably not perfect but better than doing nothing. The constitution and rule of law is more important than fear-mongering about terrorists

  • Comment Link Frank M. Pelteson Friday, 30 November 2012 15:37 posted by Frank M. Pelteson

    The action is in the reaction. This is the Marxist dialectic at work; Thesis-Antithesis-Synthesis.

    The action was a terrorist act. The reaction is to form a police state. purportedly to prevent the action.

    The result (synthesis) desired by the INSIDERS is a police state in which no one is safe except the INSIDERS either from terrorists or from the police.

    For more in the INSIDERS, please go to .

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