Late last year, Congress passed and the president signed into law the National Defense Authorization Act (NDAA) for fiscal year 2012. The NDAA codified, for the first time since a never-used McCarthy era law, indefinite detention without charge or trial.
The NDAA provoked an outcry, not only from human rights and civil liberties groups, but from ordinary Americans, who saw in this provision the awesome power of the state to deny people their liberty without due process of law.
In opposition to the NDAA, several states and local governments introduced resolutions declaring the detention provisions of the NDAA inoperative. Many of these focused on the rights of United States citizens not to be held indefinitely by their own government. In those local efforts, concerned individuals understandably sought to protect themselves and those in their communities from the same type of indefinite detention that several hundred foreign nationals have endured at Guantanamo, some for over 10 years. Yet the efforts, while perhaps well-intentioned, were also self-centered and, ultimately, discriminatory: they sought to protect only U.S. citizens, while excluding others who are entitled to the equal protection of the constitution and U.S. obligations under international law.
While state and local governments may be forgiven for their homegrown perspective, Congress needs to be considering the bigger picture. During the debate over the NDAA last year, Senator Dianne Feinstein boldly, vigorously, and repeatedly defended the rule of law on the floor of the Senate. Through a last minute amendment, she prevented Congress from affirmatively declaring authority for the military to detain civilians inside the U.S. Senator Feinstein has not let up on her efforts to ameliorate the damage done by the NDAA, first by proposing a bill called the Due Process Guarantee Act, and now through an amendment to the NDAA for fiscal year 2013. Yet her amendment risks eroding the very principles it seeks to protect.
Feinstein's amendment, which is supported by a coalition of Democrat and Republican senators, seeks to protect citizens and lawful permanent residents of the United States from certain indefinite military detention -- but only them. It would require Congress to expressly authorize any military detention of these categories of people in any future authorizations for military force or declarations of war. But it remains silent as to all others, implying that the executive branch is free to detain others inside the U.S. at will.
The amendment reinforces the false and discriminatory notion that due process protections are only afforded to some and not all persons inside the United States. Yet the Framers of the Constitution thought more broadly than that. While some provisions of the Constitution apply only to U.S. citizens, the 5th Amendment specifically provides that "No person shall be... deprived of... liberty... without due process of law," a principle upheld by the Supreme Court in 1896.
Feinstein's amendment excludes the tens of thousands of people who work in the U.S. on visas every year, such as engineers at Microsoft and Intel, the thousands of students who flock to U.S. universities, honeymooners on vacation, and yes, the millions of people who have been living in the U.S. illegally for decades, working to feed their families just like their citizen neighbors. As Feinstein herself said on the floor of the Senate, "Just think of it. If someone is of the wrong race and they are in a place where there is a terrorist attack, they could be picked up, they could be held without charge or trial for month after month, year after year. That is wrong." Non-citizens and those without green cards are equally deserving of protection from that fate.
Feinstein acknowledged her amendment was inadequate. When introducing it on the floor of the Senate she said she "would support providing the protections in this amendment to all persons in the United States whether lawfully or unlawfully present." She limited her amendment only because she did not believe she could get enough votes for a broader protection.
The U.S. practice of holding people indefinitely without trial is odious and a violation of international law. The fact that Congress codified it, and the president signed it into law, is equally troubling. But the way forward is not through piecemeal steps that result in discrimination while continuing to violate due process protections; it is to repeal the indefinite detention provisions of the NDAA.
The U.S. is bound not only by the Constitution, but by international treaties that prohibit unnecessary deprivation of liberty, not for some but for all. While due process is a personal right, the obligation to protect it lies with the government. The Fifth Amendment requires that the government protect people's liberties. Congress should take this injunction seriously, and carefully examine its laws to ensure that they provide that protection.
Where the laws fail, as with the codification of indefinite detention, it is incumbent on Congress to correct them. But to do so in a way that rejects the basic principle that everyone is entitled to due process of law, would be a grave mistake.
