Today, the Senate Judiciary Committee held a hearing entitled, “The Due Process Guarantee Act: Banning Indefinite Detention of Americans,” which shed light on controversial provisions of the National Defense Authorization Act for Fiscal Year 2012 (NDAA).
That act, signed into law on December 31, 2011, codified some of the most extreme abuses of civil liberties that have been pursued following the initiation of the ‘War on Terror,’ the actions of which, under the current administration, are now engaged under the title, ‘Overseas Contingency Operations.’ The most striking provision of the NDAA affirmed a broad interpretation of the Authorization for Use of Military Force Against Terrorists (2001) and stated that the executive has the power to detain anyone “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities … without trial, until the end of the hostilities authorized by the [AUMF 2001],” which many interpret would permit even the indefinite detention of American citizens.
Although the current executive branch has pledged to not act upon these powers with respect to American citizens – President Obama signed the law with an adjoining statement , declaring, “my Administration will not authorize the indefinite military detention without trial of American citizens” – the potential for future administrations to engage in such clearly unconstitutional behavior, or for the Obama Administration to simply change its mind, is a danger that all Americans should be wary of.
Troubled by these possibilities, Senator Dianne Feinstein introduced the ‘Due Process Guarantee Act of 2011’ just hours after the final version of the NDAA was approved by the Senate. The bill seeks to amend the United States Code affected by the NDAA, effectively barring the executive from utilizing indefinite detention on American citizens without express approval from Congress to do so.
The hearing today regarded this remedial act; and there were fireworks to say the least.
Senator Feinstein, who chairs the Senate Intelligence Committee and is the author of the bill, repeatedly called into question the effectiveness of the provisions in question. Alluding to her past experiences on the Intelligence Committee, Feinstein echoed the concerns of leaders of intelligence and domestic crime fighting agencies who have expressed their disagreement with the infringement of the Armed Forces into domestic security concerns.
Senator Patrick Leahy, before passing the gavel to Senator Feinstein to chair the session, spoke more broadly about the practice of indefinite detention in his opening statement , stating, “A regime of indefinite detention degrades the credibility of this great Nation around the globe, particularly when we criticize other governments for engaging in such conduct.”
The most heated portion of the hearing arose when Senator Al Franken objected  to the testimony of Steven G. Bradbury, a former Bush Administration appointee invited by Senate Republicans to testify in favor of the indefinite detention provisions. Franken alluded to the ‘enhanced interrogation’ memos (more accurately called torture memos) that Bradbury authored – which were the subject of a Justice Department probe that concluded by seriously questioning the legal work of Bradbury and others - and stated, “it’s very difficult for me, frankly, to rely on your legal opinion today.”
To ensure that future generations of Americans are not subject to indefinite detention without charge or trial, which was deemed unconstitutional by the Hamdi Supreme Court decision in 2004, please contact your local Representative  and Senators  to express your opposition to the NDAA, and encourage them to co-sponsor legislation to make sure the law reflects our Constitution’s most essential values. ( H.R. 36702  in the House; S. 2003  in the Senate).