December 20, 2012

In late November, during a closely watched public debate, the Senate voted by a wide, bi-partisan margin to ban indefinite detention of American citizens. But now that the legislative process has moved behind closed doors, it’s a completely different story.

The vote in November took place on an amendment from Sen. Dianne Feinstein [D, CA] to the 2013 National Defense Authorization bill (2013 NDAA). It was designed to overturn Sec. 1021 of last year’s Defense bill, which provided congressional support and formal codification for the military’s presumed authority to detain American citizens who they suspect of being terrorists without charge or trial.

“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,” the amendment stated.

However, according to multiple reports, the amendment has now been stripped from the bill. On Tuesday, the House-Senate conference committee that was tasked with reconciling the differing Senate and House versions of the Defense bill, voted to replace the amendment with new language that effectively keeps the indefinite detention law intact.

A spokesperson for the conference committee told the Huffington Post that new language was added by the committee stating that “shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court.” That language is essentially toothless, however — the question is not whether a US citizen detained by the military must be brought before a judge, as is already guaranteed by habeas corpus, but whether the judge is required to give them a formal charge and trial. The most significant effect of the bill on military detention policies will be the legislative record demonstrating that each time this issue comes up, despite all of the public statements by members of Congress to the contrary, the Congress is ultimately not opposed to the extension of military detention to US citizens.

As Adam Sewer at Mother Jones explains, the conference committee was stacked with legislative leaders who support military detention powers applying to US citizens and were actually involved in inserting the provision in last year’s bill. Of course, the public will never know exactly how the conference committee decided to drop the amendment and who voted for or against because the House voted 351-53 to allow the conference committee to meet in a “closed” session. No cameras were allowed in the room and no records of the debates or votes were made public.

The final conference committee bill must now be re-approved by the House and Senate before being sent off to President Obama for his signature. The whole process is expected to be wrapped up by the end of the week.

http://www.opencongress.org/articles/view/2520-Secretive-Conference...