Obama Seeks to Prevent Defense Bill’s Indefinite Detention of US Citizens

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Senate Armed Services Committee Chairman Carl Levin (D-MI) and Ranking Member John McCain (R-AZ)
Source: “National Defense Authorization Act Rejected by Left AND Right,” thelibertyvoice.com, Dec. 9, 2011

President Obama threatened to veto the National Defense Authorization Act of 2012 (NDAA) unless lawmakers remove the provision authorizing indefinite military detention of US citizens believed to have engaged in terrorist activities. The $662 billion Senate bill passed in a 93-7 vote on Dec. 1, 2011.

Senate Armed Services Committee Chairman Carl Levin (D-MI), who wrote the Senate’s indefinite detention provision with Sen. John McCain (R-AZ), said in a floor speech that he believes that the June 2004 US Supreme Court decision Hamdi v. Rumsfeld currently allows for the detention of US citizens. “We think the law is clear in Hamdi that there is no bar to this nation holding one of its own citizens as an enemy combatant and we make clear whatever the law is, it is unaffected by this language in our bill.”

Opponents of the detention provisions include Secretary of Defense Leon Panetta, CIA Director David Petraeus, FBI Director Robert Mueller, Director of National Intelligence James Clapper, White House Advisor for Counterterrorism John Brennan, and DOJ National Security Division head Lisa Monaco, according to the ACLU. Panetta, Mueller, and Secretary of State Hillary Rodham Clinton joined President Obama in lobbying lawmakers this week to remove the detention language as well as other provisions that place restrictions on executive authority while fighting the “War on Terror.”

Senators rejected in a 45-55 vote Amendment 1126 presented by Dianne Feinstein (D-CA) seeking to exclude US citizens from the detention provision. The Senate instead voted 99-1 to include a compromise amendment stating that the NDAA does not intend to alter current laws regarding the detention of US citizens.

Speaking against the Feinstein amendment on the Senate floor, Sen. Lindsay Graham (R-SC) said, “It has been the law of the United States for decades that an American citizen on our soil who collaborates with the enemy has committed an act of war and will be held under the law of war, not domestic criminal law. In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair. That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaeda is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield.”

A Dec. 8, 2011 New York Times editorial said, “These new rules would harm the justice system and national security… Countries would be less likely to turn over prisoners to American authorities if they would land in military detention. Both versions of the bill would make the detention camp in Guantánamo Bay, Cuba, a permanent symbol of injustice and cruelty around the world. Both leave open the possibility of subjecting American citizens to military detention without charge or trial. These measures are not just bad policy, they are entirely unnecessary.”

The House and Senate versions of the NDAA are currently being reconciled in conference committee with Sen. Levin (D-MI), Sen. McCain (R-AZ), Rep. Buck McKeon (R-CA), and Rep. Adam Smith (D-WA) reportedly engaging in a series of secret meetings. Rep. Smith is the only member of “the Big Four” who has spoken out against the indefinite detention provision. Rep. McKeon is responsible for writing the House version of the detention provision.


Chris Anders, “Behind Closed Doors: Congress Trying to Force Indefinite Detention Bill on Americans,” www.aclu.org, Dec. 7, 2011

Donna Cassata, “National Defense Authorization Act: Obama Personally Reaching Out to Lawmakers over Detainee Provision,” www.huffingtonpost.com, Dec. 9, 2011

“Hobbling the Fight Against Terrorism,” New York Times, Dec. 7, 2011