Posted by on December 14, 2012 in Blog

The National Defense Authorization Act for Fiscal Year 2013 (NDAA) is just days away from reaching the President’s desk. Despite efforts by several senators and representatives on both sides of the aisle to address some of the fundamental civil liberties concerns with the bill, the bill in its current form not only discriminates on the application of the Due Process Clause afforded to immigrant communities but also makes it exceedingly difficult for the President to live up to his promise of once and for all closing the infamous Guantanamo Bay detention center.

Although an amendment introduced by Senators Dianne Feinstein (D-CA) and Mike Lee (R-UT), passed (67-29)[1] on Nov. 29, with the intent to prohibit the use of military tribunals to detain U.S. citizens and legal residents apprehended on U.S. soil, the amendment is still inconsistent with the U.S. Constitution. It discriminates on the basis of a person’s residency status and also includes a dangerous provision implying that there are no constitutional hurdles if the U.S. Congress passes legislation authorizing the domestic military detention of any person in the U.S.

The key language in the Feinstein-Lee amendment reads: "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 apprehended in the United States, unless an Act of Congress expressly authorizes such detention."

There should be no instance of the domestic use of the military when it’s prohibited by federal law. Additionally, the Supreme Court has stated for more than a century that foreign nationals are “persons” within the meaning of the Constitution and protected by those rights.[2] The Supreme Court has repeatedly stated that the “Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”[3]

A coalition of civil and human rights organizations voiced their opposition to the Feinstein-Lee amendment and sent a letter to Senator Feinstein’s office in the days leading to the amendment’s debate on the Senate floor. And earlier this week, the Arab American Institute along with the American-Arab Anti-Discrimination Committee, Muslim Advocates, and the Muslim Public Affairs Council, sent a letter to Senators Carl Levin (D-MI), John McCain (R-AZ) and Representatives Buck McKeon (R-CA) and Adam Smith (D-WA), the chairs and ranking members of the Senate and House Armed Services Committee, who will be leading the House-Senate conference in the coming days to draft the final version of the bill, voicing opposition to the military detention provisions currently in the 2013 National Defense Authorization Act.

Another troubling provision in the latest version of the bill includes a measure that would prevent Guantanamo detainees from relocating to other facilities in the U.S. or elsewhere, and would stipulate that the U.S. detention center in Guantanamo would essentially be forced to remain open throughout 2013, despite President Obama’s efforts to shut it down once and for all. The amendment was introduced by Sen. Kelly Ayotte (R-NH) and passed in the Senate 54-41. The White House, however, has threatened to veto the bill in its current form, objecting to a number of provisions including language limiting the transfers of Gitmo prisoners.

It’s unclear what additional changes will be made after the defense bill passed the Senate unanimously (98-0) on December 4, 2012 and whether the Gitmo restrictions will be removed. The House voted yesterday on a motion to send the Defense Authorization bill to a closed-conference, where any unresolved issues between the two chambers will be resolved before the bill is sent to the House floor for a final vote. This may be the final opportunity for Congress to strip out these unconstitutional provisions.

Because of the discriminatory nature of the application of the Due Process Clause and the stipulations in the bill making it more difficult for the President to take action to finally close the U.S. detention center in Guantanamo Bay, the President should veto the bill.

[1] A total of 20 Republicans, 46 Democrats and 1 Independent voted for the Feinstein-Lee Amendment

[2] Kwong  Hai Chew v.  Colding, 344  U.S.  590,  598  n.5  (1953).

[3] Zadvydas v.  Davis, 533  U.S. 678, 693 (2001)


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