NDAA battle ends in defeat for ‘indefinite detention’ opponents

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W. James Antle III Managing Editor
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In less than a month, critics of the National Defense Authorization Act’s (NDAA) treatment of American citizens accused of terrorism went from a lopsided victory to an equally lopsided defeat, as Congress easily passed the bill without critics’ preferred language on indefinite detention.

Some lawmakers believed that the NDAA allowed the indefinite detention of U.S. citizens without trial if they faced terror accusations, though supporters of the bill contested that reading. In November, the Senate voted 67 to 29 to adopt a bipartisan amendment that made clear that Americans could not be held indefinitely.

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.”

Even that amendment didn’t go far enough for some, including the American Civil Liberties Union and Michigan Republican Rep. Justin Amash. They argued that the phrase “unless an Act of Congress expressly authorizes such detention” suggests there is no constitutional barrier to indefinite detention.

The amendment, introduced by California Democratic Sen. Dianne Feinstein and Utah Republican Sen. Mike Lee, was nevertheless viewed as a solid compromise. It even won the vote of South Carolina Republican Sen. Lindsey Graham, who had opposed similar amendments in 2011.

But the House didn’t pass anything like Feinstein-Lee when it originally voted on NDAA, and the final version reported out of conference committee didn’t include the language.

Kentucky Republican Sen. Rand Paul had called the amendment’s Senate success a “HUGE win for the Constitution, the Bill of Rights, and an 800-year precedent.” He blamed Arizona Republican Sen. John McCain for its removal.

“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,” Paul said in a statement.

“The plain language of this year’s defense authorization conference report does nothing remotely resembling what Sen. Paul claims,” McCain Communications Director Brian Rogers shot back in an email to The Daily Caller News Foundation.

“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 argued. “To suggest that the chairmen and ranking members of the congressional defense authorization committees somehow stripped those rights is just wrong.”

Habeus corpus is a writ mandating that a person accused of a crime get a trial.

Paul and his allies vowed to fight the revised NDAA. The Ron Paul-inspired organization Campaign for Liberty circulated a blog post entitled “John McCain wants you detained,” urging supporters to call the senator’s office in protest.

But members of Congress, already stymied over the fiscal cliff and eager to leave town before Christmas, didn’t take up the fight. The House voted 315 to 107 for the final 2013 NDAA. It passed the Senate by a vote of 81 to 14.

Several Republicans aligned with Paul spoke out against the bill. “The NDAA violates fundamental rights recognized since the signing of the Magna Carta in 1215 A.D.,” said Kentucky Republican Rep. Thomas Massie in a statement. “This bill ignores principles central to American liberty… I couldn’t in good conscience vote for the NDAA while simultaneously upholding my oath to defend the Constitution.”

Minnesota  Rep. Michele Bachmann, Wisconsin Rep. James Sensenbrenner, and Texas Rep. Ralph Hall were also among the GOP no votes.

All four Republicans recently relieved of their preferred committee assignments by the House leadership — Amash, Kansas Rep. Tim Huelskamp, Arizona Rep. David Schweikert and North Carolina Rep. Walter Jones — also voted no.

“These core American legal privileges prescribed in our Bill of Rights have been observed since our nation’s founding,” Sen. Paul said in a statement. “When I assumed office, I took an oath to protect our Constitution – and in voting against this unconstitutional NDAA, I kept that promise.”

On the Senate floor, Paul blasted the bill as an “abomination” while Graham retorted, “I don’t mind saying we’re at war.”

The Senate no votes were evenly divided between Democrats and Republicans. South Carolina Republican Sen. Jim DeMint, who opposed the 2012 NDAA, did not vote.

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