Conference Committee Drops Ban on Indefinite Detention of Americans

By Josh Gerstein, Politico

19 December 12

Congressional conference committee has dropped a provision the Senate passed earlier this year which proponents said would keep American citizens arrested on U.S. soil from being detained indefinitely under the laws of war.

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) announced the removal of Sen. Dianne Feinstein's indefinite detention amendment Tuesday afternoon as he described the results of a House-Senate conference on the 2013 National Defense Authorization Act.

"The language of the Senate bill was dropped," Levin told reporters, according to POLITICO Pro's Juana Summers. He said that provision and language the House proposed was replaced with language that indicates that last year's NDAA shouldn't be interpreted to preclude Habeas Corpus suits by persons detained in the U.S.

Levin declined to comment on the reasons for or the import of the decision. "Basically, I won't interpret that any further," he added.

Levin and some other senators had argued that the amendment Feinstein put forward to require explicit Congressional authorization for any detention of Americans on U.S. soil would have no real effect because courts had interpreted Congress's 2001 Authorization for the Use of Military Force as granting authority for detention. However, notwithstanding Levin's position, the AUMF does not explicitly grant that authority.

Feinstein's amendment passed, 67-29, late last month. The California Democrat said it would keep Americans from being held under the laws of war, unless they were captured overseas.

"I was saddened and disappointed that we could not take a step forward to ensure at the very least American citizens and legal residents could not be held in detention without charge or trial. To me that was a no-brainer," Feinstein said in a statement Tuesday afternoon.

The White House threatened a veto of both the Senate and House versions of the NDAA before Feinstein's amendment was added to the legislation. Obama's aides objected to a variety of items in the bill, including weapons programs the administration did not request and language limiting transfers of prisoners from Guantanamo.

The credibility of the veto threat was shaky from the git-go, however, since Obama's White House issued a similar threat a year ago but later signed that bill with minor modifications.

A White House spokesman had no comment Tuesday afternoon on whether the president was satisfied with the conferenced version of this year's bill.

Sen. John McCain (R-Ariz.) said Tuesday he hoped the changes to the 2013 measure would be sufficient to win Obama's signature.

"You'll have to ask them, but again, I can't predict what they will do. I think we made some significant changes, we worked very closely with Sec. Panetta and the Pentagon. It wasn't as if we were doing all these things on our own," McCain told Summers.

Asked if he expected the president to sign NDAA, McCain replied: "I hope he will. I hope he will. Last year they issued a signing statement, as you know, that basically said it ignores certain provisions of the bill, and he signed it. I hope that he understands the balance."

A lobbyist for the American Civil Liberties Union, Chris Anders, said a variety of groups who favor closing Guantanamo are urging Obama to veto the legislation.

"This is the time for the president to decide what he wants his legacy to be on closing Guantanamo," Anders said. "If the president signs an additional one-year restriction on transfers out of Guantanamo, it's going to make it difficult if not impossible to close Guantanamo during his presidency. This is a key decision point for the president."

Anders called the language on indefinite detention of Americans "completely meaningless." He said there's no doubt that habeas rights are available to anyone who's detained in the U.S.