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Kentucky Republican Sen. Rand Paul (Photo by Mark Wilson/Getty Images) Kentucky Republican Sen. Rand Paul (Photo by Mark Wilson/Getty Images)  

Rand Paul, John McCain spar over NDAA ‘indefinite detention’ language

Photo of W. James Antle III
W. James Antle III
Editor, The Daily Caller News Foundation

Federal lawmakers are once again clashing over how to treat American citizens accused of terrorism, after Congress quietly stripped a provision from a defense bill that was intended to prevent indefinite detention without trial.

In November the Senate voted overwhelmingly to amend the National Defense Authorization Act (NDAA) to curb indefinite detention. California Democratic Sen. Dianne Feinstein and Utah Republican Sen. Mike Lee introduced the amendment.

But the House did not pass similar language, and a conference committee that convened to resolve the differences between the two versions declined to include the Feinstein-Lee amendment.

Kentucky Republican Sen. Rand Paul quickly blamed his party’s 2008 presidential nominee, blasting a “McCain-led NDAA conference committee” for the omission.

“The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,” Sen. Paul said in a statement.

“When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity,” the senator continued, noting that he voted against NDAA last year but supported the current version because of the Feinstein-Lee amendment.

Earlier this month, McCain criticized Paul for trying to filibuster the bill, arguing that it bolstered Senate Majority Leader Harry Reid’s case for filibuster reform.

“I find it disappointing that one member of the United States Senate feels that his particular agenda is so important that it affects the lives and the readiness and the capabilities of the men and women who are serving in the military and our ability to defend this nation,” McCain told Roll Call. “I think it’s hard to answer to the men and women in the military … with this kind of behavior, but I will leave that up to the senator from Kentucky to do so.”

Some civil libertarians worried that even Feinstein-Lee didn’t go far enough, arguing that it left the door open for Congress to authorize indefinite detention.

The amendment declared, “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.”

The American Civil Liberties Union warned that this “could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States.”

Michigan Republican Rep. Justin Amash, a frequent Paul ally in the House, argued that the 2012 NDAA “renders the rest of the Feinstein amendment meaningless.”

The compromise was nevertheless good enough to pass the Senate 67 to 29 in November. Now opponents of the NDAA’s detention provisions are back to square one.

In place of the Feinstein-Lee amendment is language stating that nothing in the NDAA “shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights.”

The Supreme Court has already ruled that the writ of habeas corpus applies to all people.

“Habeas corpus is simply the beginning of due process,” Paul insisted. “It is by no means the whole.”

“Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience.”

UPDATE: John McCain’s office responds:

“The plain language of this year’s defense authorization conference report does nothing remotely resembling what Senator Paul claims,” McCain communications director Brian Rogers told The Daily Caller News Foundation in an email.

“The relevant section, entitled ‘Rights Unaffected,’ preserves not just the right to habeas corpus, but all constitutional rights enjoyed by every person before a court of the United States,” Rogers continued. “To suggest that the chairmen and ranking members of the congressional defense authorization committees somehow stripped those rights is just wrong.”

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