By Joe Wolverton, II, J.D.
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: