The Senate passed a provision to the National Defense Authorization Act (NDAA) earlier this year that a bicameral congressional conference committee has dropped from the bill. Proponents of the provision say it is needed to keep American citizens arrested on U.S. soil from being detained indefinitely under the laws of war. Those against the provision say it is unnecessary and Americans arrested on American soil retain their right to be brought before a judge (Habeas Corpus) so that they may be charged or released.
The indefinite detention amendment was introduced last month by Sen. Dianne Feinstein's (D-CA). The removal of the amendment is the result of a House-Senate conference on the 2013 National Defense Authorization Act.
The provision and language the House proposed was replaced with language that indicates that last year's NDAA shouldn't be interpreted to prevent Habeas Corpus suits by persons detained in the U.S.
Some lawmakers felt that the amendment Sen. Feinstein had put forward to require explicit congressional authorization for any detention of Americans on U.S. soil would have no real effect because courts had interpreted Congress's 2001 Authorization for the Use of Military Force as granting authority for detention.
Sen. Feinstein's amendment passed, 67-29, late last month. She said it would keep Americans from being held under the laws of war, unless they were captured overseas.
“I was saddened and disappointed that we could not take a step forward to ensure at the very least American citizens and legal residents could not be held in detention without charge or trial. To me that was a no-brainer," Sen. Feinstein said in a statement to reporters.
The White House threatened a veto of both the Senate and House versions of the NDAA before the Feinstein amendment was added to the legislation. President Obama objected to a variety of items in the bill, including weapons programs the administration did not request and language limiting transfers of prisoners from Guantanamo.
Sen. John McCain (R-AZ) said of the bill, “… we worked very closely with Sec. Panetta and the Pentagon. It wasn’t as if we were doing all these things on our own.”
A lobbyist for the American Civil Liberties Union, Chris Anders, said a variety of groups who favor closing Guantanamo are urging President Obama to veto the legislation.
"This is the time for the president to decide what he wants his legacy to be on closing Guantanamo," Anders said. "If the president signs an additional one-year restriction on transfers out of Guantanamo, it's going to make it difficult if not impossible to close Guantanamo during his presidency. This is a key decision point for the president."
Anders called the language on indefinite detention of Americans "completely meaningless." He said there's no doubt that habeas rights are available to anyone who's detained in the U.S.