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'Global Battlefield' Provision Allowing Indefinite Detention of Citizens Accused of Terror Could Pass This Week

Lawmakers are looking to vote as soon as Thursday on the final National Defense Authorization, which has outraged civil liberties advocates.

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But those accused terrorists were foreigners, so there’s no need for us Americans to worry, right? Not exactly. While section 1032 specifically exempts American citizens and lawful resident aliens from the mandate, military detention would remain an option for U.S. citizens accused of terrorism, just not a required one. So much for the 6th Amendment’s guarantee of the right to “a speedy and public trial.”

Section 1031 still permits the government to indefinitely detain Americans accused of terrorism in military custody. As a result, Democratic Sen. Diane Feinstein revised the language in a last-minute amendment, which says:

Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

The problem is that existing law pertaining to the indefinite detention of U.S. citizens or legal residents on U.S. soil is fuzzy. As the Senate debated these provisions, both sides claimed that the 2004 Supreme Court case, Hamdi v. Rumsfeld, supported their positions. The Supreme Court ruled that U.S. citizen Yaser Esam Hamdi, who was apprehended in 2001 during the invasion of Afghanistan, could not be held by the military indefinitely without habeas review.

However, in the Hamdi case, the court ruled only that detainees could challenge their status as an “enemy combatant.” It didn't guarantee them the right to a fair trial. (In a subsequent case, Hamdan v. Rumsfeld, the court ruled against the military commissions enacted by Bush, because they violated the Geneva Conventions, but it did not grant detainees access to the courts. Instead, it mandated only that military tribunals comport with our treaty obligations and the Uniform Code of Military Justice.)

According to Anders, “The two most recent times where the Supreme Court could have clearly made a decision on what the scope of detention authority is, particularly for people picked up away from any battlefield, including U.S. citizens, they did not decide those cases because the court no longer had jurisdiction over that issue.” He was referring to the cases of Jose Padilla and Ali Saleh Kahlah al-Marri.

In the aftermath of 9/11, the Bush administration held U.S citizen Jose Padilla in a military brig as an enemy combatant for nearly four years without charges, on suspicion of plotting a dirty bomb terrorist attack. Just as the Supreme Court was preparing to rule on the constitutionality of the President’s actions, the Bush administration conveniently removed Padilla from military custody and charged him in criminal court, rendering the case moot.

In December 2001, Ali Saleh Kahlah al-Marri, who was living in the United States on a student visa with his wife and five children, was arrested for credit card fraud and lying to federal agents. In 2003 the government accused al-Marri of being an al-Qaeda sleeper agent, designated him an “enemy combatant” and transferred him to military detention, where al-Marri, the only noncitizen to have been held as an enemy combatant on U.S. soil, spent nearly six years in solitary confinement at a Navy brig in South Carolina. The Supreme Court agreed to hear al-Marri’s case in late 2008, but by early 2009, the Supreme Court dismissed it because the Obama administration filed criminal charges against al-Marri in civilian court.

As a result, says Anders, “The Feinstein language potentially doesn’t change anything, because it’s still operating on this background of uncertainty.”

To his credit, Obama has not imprisoned U.S. citizens in military detention, nor has he attempted to. His administration has even voiced concern about the bill’s military detention provision in its application to U.S. citizens, threatening to veto it on the grounds that it “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.” Almost the entire national security establishment has come out against this bill as well, including Defense Secretary Leon Panetta, Director of National Intelligence James Clapper, FBI Director Robert Mueller, DOJ National Security Division head Lisa Monaco, and CIA Director David Petraeus, who believe these provisions are harmful and counterproductive to national security.

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