Feinstein, Tea Party Sen. Lee Wage War on Obama's Indefinite Detention Powers

A unique alliance between a Tea Party Republican and Democratic stalwart pushed an amendment to the National Defense Authorization Act on the Senate floor today to block the president’s broad power to hold American citizens without trial.

Civil libertarian supporters in the upper chamber stressed the urgency of passing the language for fear that more than actual terrorists could be detained by the government’s current authority.

Sens. Dianne Feinstein (D-Calif.) and Mike Lee (R-Utah) essentially mirrored their Due Process Guarantee Act of last year, which got stuck in committee after hearings.

That bill was “to clarify that 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 and for other purposes.”

In short, it would ban the military detention of Americans captured on U.S. soil — and attempts to stop any abuse of the powers by the executive branch.

Lee said on the Senate floor today that he and Feinstein have been working together over the past year to get passage of the bill — now in amendment form — “to craft what we believe represents a very prudent course in protecting both our nation and our liberties at the same time.”

“We must stand behind our 225-year-old founding document as it’s been amended to ensure our liberty isn’t taken away from us, to give us a path to providing for our security without jeopardizing the freedom that our American citizens cherish so much and have fought so hard and so long to protect,” Lee said. “Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation’s great constitutional values. This amendment, the Feinstein-Lee amendment, protects those values.”

Feinstein outlined in “very clear” terms what the amendment is and is not about.

“It’s not about whether citizens such as [Yaser Esam] Hamdi and [Jose] Padilla or others who would do us harm should be captured, interrogated, incarcerated, and severely punished,” she said. “They should be. But what about an innocent American? What about someone in the wrong place at the wrong time, with the wrong skin color?”

“The beauty of our Constitution is that it gives everyone in the United States basic due process rights to a trial by a jury of their peers. That is what makes this nation great,” Feinstein continued. “…The federal government experimented with indefinite detention of United States citizens during World War II, a mistake we now recognize as a betrayal of our core values. Let’s not repeat it.”

The president was granted absolute power to make such detentions under last year’s National Defense Authorization Act, with a Feinstein amendment to exclude U.S. citizens from the detention authority failing 45-55.

This year’s amendment is not specifically mentioned as one of those up for consideration tomorrow, according to the majority leader’s calendar, but it does state that amendments will be worked through with intended completion of the bill this week.

Adding to the unusual pairing of the amendment’s authors is the mix of co-sponsors: Sens. Rand Paul (R-Ky.), Chris Coons (D-Del.), Susan Collins (R-Maine), Frank Lautenberg (D-N.J.), Kirsten Gillibrand (D-N.Y.), Mark Kirk (R-Ill.), Jon Tester (D-Mont.), Tim Johnson (D-S.D.), Bernie Sanders (I-Vt.), Sheldon Whitehouse (D-R.I.), Max Baucus (D-Mont.), and Dean Heller (R-Nev.).

Not surprisingly, Paul has threatened to filibuster the defense bill unless the amendment gets a vote.

“Those senators who would propose limiting the right to trial by jury, they reflect and demur that everyone would still have a habeas hearing. A habeas hearing is important. You must present the body and a judge must say ‘why are you holding this person.’ But it’s not the end of due process. It’s the beginning of due process,” Paul argued on the floor today.

“…We must still have a trial by jury or we do not have the due process that our Founding Fathers fought for. Those Senators who would abridge this and say a habeas hearing is enough should remember Blackstone’s admonition. Every new tribunal erected for the decision of facts without the intervention of a jury is a step toward establishing aristocracy, the most oppressive of absolute governments.”

Paul referenced a center in Missouri tasked with gathering information about terrorists and streamlining federal and local enforcement communications.

“But from this fusion center comes a document that says beware of people who have bumper stickers supporting third-party candidates. Beware of people who believe in stricter immigration laws,” he said. “Beware of people who support the right to life. They might be terrorists. This is an official document. Do we want to give up the right to trial by jury when we’re being told that somebody who keeps food in their basement might be a terrorist?”

President Obama tried to codify opponents of last year’s bill by saying he wouldn’t use his new broad authorities, which vaguely peg the targets as anyone who provides “substantial support” to al-Qaeda or “associated forces.” The administration recently went to battle in court to uphold the powers, though.

Sen. Lindsey Graham (R-S.C.) called the Feinstein-Lee amendment a “disaster.”

“What they’re trying to do is say if you can find an American who is trying to help Al Qaeda, you can’t hold them for military interrogation to find out what they’re up to,” Graham said. “You have to read them their rights and treat it as a common crime … I think it will make us less safe.”

“I think what you would actually be doing is actually encouraging the enemy to find American citizens.”