Should the Military Be Allowed to Detain Americans Indefinitely?

Sen. Dianne Feinstein, D-Calif., introduced legislation Tuesday that would prohibit any American captured by the U.S. military in its war on terrorism from being held indefinitely without trial, this in the wake of an overwhelming bipartisan defeat of a measure that would have stripped language from a massive defense spending bill that requires military custody for individuals suspected of being members of al Qaeda or its affiliates.

"I strongly believe the U.S. government should not have the ability to lock away its citizens...without charging and providing a heightened level of due process. We don't pick up citizens...without giving them due process of law," Feinstein, chairwoman of the Select Committee on Intelligence, said, as she introduced an amendment to the defense bill, a measure that funds troop pay raises, weapons systems, and money for the wars in Afghanistan and Iraq.

The White House has threatened to veto the National Defense Authorization Act for several reasons, not the least of which is the detainee provisions. In strong language, the Administration has warned that the bill's requirements, including mandatory military custody for those detained on any battlefield, including inside the United States, would greatly hinder its ongoing operations.

"The Administration strongly objects to the military custody provision...which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals," the "Statement of Administration Policy reads. "Applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets."

Bill supporters, including both Senate Armed Services Committee Chairman Carl Levin of Michigan and his GOP counterpart, John McCain of Arizona, successfully fended off a challenge Tuesday led by Sen. Mark Udall, D-Colo., with support from Tea Party conservative Sen. Rand Paul of Kentucky.

Feinstein then announced her intention to challenge the bill on a narrower basis, attempting to carve out American citizens from the bill's strictures.

The Feinstein amendment expressly prescribes the authority of the U.S. military where U.S. citizens are concerned, saying that the authority of "the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial."

"We're fighting a war, not a crime," said Sen. Lindsey Graham, an Air Force Reserves military lawyer and key author of the nation's detainee treatment law. "Here's what we decided to do as a body today. America is part of the battlefield. We firmly believe the war is coming back home, so we're no longer going to have an absurd result that if we capture you overseas where you're planning attack on the United States, we can blow you up or put you in a military prison indefinitely. But if you make it to America, all of a sudden you get Miranda rights and you go to federal court. That's an absurd result; never been known in war before."

Graham, Levin, and McCain say the Administration should not object to the requirements of their bill, because they put in a national security waiver, allowing the Secretary of Defense to determine if certain situations necessitate a criminal/civil path, not a military one.

The Senate is slowing moving toward final passage of the $662 billion defense measure by week's end, a normally popular bill that Congress has approved every year for a half century, but it's fate this time around is, as yet, uncertain.  A key test vote is set for Wednesday.