Feinstein to Challenge Indefinite Detention Law

By Carolyn Lochhead, San Francisco Chronicle

29 February 12

en. Dianne Feinstein today will challenge a law signed by President Obama that allows the military to arrest and imprison, without charge or trial, Americans suspected of terrorism.

The California Democrat has argued that the detainee provisions of the National Defense Authorization Act are a contemporary version of a World War II executive order that sent about 110,000 Japanese Americans to relocation camps throughout California and the West in what is considered one of the most shameful episodes in U.S. history.

Feinstein will chair a Senate Judiciary Committee hearing on a bill she is sponsoring, the Due Process Guarantee Act, that would change the detainee portions of the law that the president signed in December. The bill has 24 co-sponsors including four Republicans, Mark Kirk of Illinois, Mike Lee of Utah, Rand Paul of Kentucky and Jerry Moran of Kansas.

Among those scheduled to testify today is Lorraine Bannai, a law professor at Seattle University whose parents, grandparents, aunts and uncles were incarcerated at the Manzanar relocation camp in the California desert during World War II.

Since Obama signed the law, it has generated an outcry from an unusual coalition of groups on the liberal left and libertarian right. Legislatures in several states, including Virginia, Missouri and Tennessee, have passed resolutions to urge that the law not be implemented.

Due Process Violated?

Critics contend the law violates basic due-process rights and turns back a post-Reconstruction injunction against using the military against civilians at home.

Bruce Fein, a former Justice Department official in the Reagan administration, said the law "authorizes the president to employ the military to show up on any of our doorsteps and say, 'We think, based upon secret facts, you're ... in some kind of way associated with al Qaeda that is fighting against our coalition partners, whoever they are. You can't challenge any of our evidence, and you can go to Guantanamo Bay and rot for the rest of your life.' "

Floyd Mori, national executive director of the Japanese American Citizens League, said he sees "very clear similarities" between the detainee law and the 1942 executive order signed by President Franklin Roosevelt to round up Japanese Americans.

"When we hear about indefinite detention today, the promise is that we're not going to do what was done" in 1942, Mori said. "That may be well and good, but one never knows who will administer and interpret this particular piece of law."

The law's defenders argued that critics are exaggerating the civil liberties threat. Ken Gude, a national security analyst for the liberal Center for American Progress, argued that the law "establishes no new detention authority."

Many defenders point to Obama's signing statement, in which he said the law does not go beyond the government's current authority and promised that "my administration will not authorize the indefinite military detention without trial of American citizens."

Feinstein's allies among civil rights organizations praised her effort but said her bill is too limited. They want full repeal of the detainee provisions, as a House bill by GOP presidential contender and Texas Rep. Ron Paul would do. The Feinstein bill would protect citizens and permanent legal residents from indefinite military detention but not tourists, business travelers, illegal residents and anyone who is not a citizen or green-card holder.

"Sen. Feinstein has been a true hero in fighting back against the NDAA," said Chris Anders, legislative director of the American Civil Liberties Union. But he said the bill "still needs some more work to meet the goals of explicitly blocking indefinite detention without charge or trial in the United States and ending illegal indefinite detention worldwide."

Shahid Buttar, executive director of the Bill of Rights Defense Committee, an activist group rallying opposition to the law, said there was no hearing on the detainee provisions.

He accused the sponsors - Senate Armed Services Committee Chairman Carl Levin, D-Mich., and ranking Republican Sen. John McCain of Arizona - of "a spectacular abuse of the legislative process" and accused all who voted for the bill of "a profound abdication of the oath of office to protect the Constitution." He called for full repeal of the detainee provisions.

The U.S. military prison at Guantanamo Bay holds 171 prisoners, including 89 who have been cleared but not released. Among those who have been freed was Lakhdar Boumediene, who was working in 2001 in Sarajevo, Bosnia, for the Red Crescent Society, which is affiliated with the Red Cross. He was seized by U.S. agents on Oct. 19, 2001, on suspicion that he intended to bomb the U.S. Embassy in Sarajevo, which he vigorously denied.

Held Seven Years

Boumediene was held at Guantanamo for seven years and ultimately freed after the Supreme Court ordered the government to justify his detention. He told his story in a New York Times opinion article on Jan. 7, saying he was never told the charges against him, never permitted to speak with his family, and was subjected to various forms of torture when he would not give his interrogators the answers they wanted.

Carolyn Lochhead is The San Francisco Chronicle's Washington correspondent. This e-mail address is being protected from spambots. You need JavaScript enabled to view it