On Thursday, the U.S. Senate passed Amendment No. 3018 to the National Defense Authorization Act (NDAA), sponsored by Sens. Dianne Feinstein (D-Calif.) and Mike Lee (R-Utah), and co-sponsored by Sen. Rand Paul.
The amendment was passed in response to the section of the NDAA, which was signed into law by President Obama last year, that allows for indefinite detention without due process of American citizens suspected of aiding terrorist organizations, seeking to protect “the rights prescribed to Americans in the Sixth Amendment of the Constitution with regard to indefinite detention and the right to a trial by jury,” according to a press release put out by Paul.
The amendment, however, has been criticized for not going far enough to protect the rights of Americans.
According to Michael Kelley writing for Business Insider on Thursday, the updated NDAA actually makes it easier for the government to detain Americans. The act protects Americans’ right to civilian trial, “but since there are…no rules in place to exercise this right, detained U.S. citizens currently have no way to gain access to lawyers, family or the court itself once they are detained within the military.”
“[T]he newest version actually goes further than the NDAA that's now in effect,” writes Kelley, describing the opinion of Bruce Afran, an attorney representing a group of journalists suing the federal government over the NDAA. Explains Afran:
The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far. Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S.
Others have criticized the amendment for being too vague.
“This amendment,” writes Joe Wolverton, “displays an indefensible use of vague language that would make it vulnerable to challenge in any court in any state in the Union, but somehow adds to its appeal among the Republicans in Congress.”
The heart of the Feinstein amendment:
"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."
Well, that Act of Congress is the 2012 NDAA, which renders the rest of the Feinstein amendment meaningless.
Even if the government lost the power to detain Americans, Barack Obama could just have anyone he wants assassinated without due process, a power Congress has put up little resistance to.