UPDATE: Though many people are speculating that the Obama administration will veto the portion of the bill that allows Executive Branch authority to decide whether it can indefinitely detain US citizens, as the administration itself has hinted, this video clip featuring Senator Levin's remarks on the floor of the Senate suggests otherwise. While Levin made these comments before the Fienstein amendment passed (see below), his take on the administration's position vis a vis authority to detain US citizens without trial intimates that the Obama administration would like to retain this power, to use if it so desires, even if it isn't explicitly allowed via the legislation.
If his administration chooses to use this power, or if a future administration does, we likely won't be able to rely on the courts to defend core principles. We can't say for sure, but we do know that the courts weren't interested when it came to US threats that the government had the right to kill Americans without due process. If the judicial branch wouldn't interfere then, why would they interfere if the administration wants to lock someone up and throw away the key? (h/t @therealkeori for video, @bangpound for clarifying questions)
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This video is from last year, but unfortunately these issues are far from settled in a satisfactory manner. Rachel Maddow looks at President Obama's first speech announcing plans for indefinite detention of anyone accused of being a terrorist, no actual crimes necessary.
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Over the past month, Congress has been debating a dangerous amendment to the National Defense Authorization Act, which would mandate the military detention of terrorism suspects and allow the military to keep people detained indefinitely, without charge or trial. Another provision of the bill — a spending bill enabling the continuation of the wars in Iraq and Afghanistan, among other military funding priorities — allows for the indefinite military detention of US citizens.
The Obama administration issued a veto threat to these provisions, but for the wrong reason. Instead of protesting that those measures are unconstitutional and anti-democratic, the Obama administration hinted that they wouldn't support the provision requiring military detention of terrorism suspects because the administration wants to keep the power to decide whether or not someone gets a trial in the Oval Office, where it currently resides (however extralegally). The CIA, the military itself, and the FBI are all opposed to mandatory military detention of terrorism suspects. But Congress doesn't seem to care what they think.
Senator Mark Udall tried to stand up for core democratic principles when he proposed an amendment that would have stricken the indefinite detention language from the bill. That amendment failed; take a look at this list to see how your representatives voted.
Then Senator Dianne Fienstein proposed an amendment which essentially abdicates responsibility on these matters completely. Her amendment basically legislates the grey area status-quo we are already living with, given Obama's policy pronouncements like that made in the above video last year. As Reason.com writes, her amendment "does not "limit or expand" the president's powers under the AUMF or "affect existing law or authorities" regarding detention of people "captured or arrested in the United States."" In other words, Congress has left it up to the courts to decide whether particular cases of indefinite detention can be challenged.
As Reason's Jacob Sullum writes,
the Feinstein amendment (which passed almost unanimously) represents an astonishing abdication of legislative responsibility. The courts should be deciding the constitutionality of the detention policy established by Congress, not sifting through deliberately ambiguous statutory language to figure out what that policy is.
Unfortunately, these circumstances are not imaginary problems. Take the case of US citizen and accused terrorist Jose Padilla, who was held for three years without trial.
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