The Skinny on the Controversial S-1867 Detainee Provision



Update 12/1: The  AP reports that the $662 billion defense bill with the offending clause has passed. The White House released a statement that the veto threat still stands. The bill includes tough sanctions against Iran.

Original Story: When does the protection of U.S. citizens go over the line and violate personal liberty? We now face an impending threat from within our country’s borders that we have never faced before. Should we be proactive, even if it means we could endanger our own personal freedom? Bill S-1867 contains a detainee clause which seeks to resolve the question, and, while I am personally convinced the bill does not have malevolent intent, it could be misinterpreted and that is what has people worried.

Spending Bill S-1867 contains a detainee clause, sec. 1032, which is causing angst on the left and right and it has engendered intense debate on Capitol Hill. People in favor of the Patriot Act will have less trouble with the detainee provision than will those who are opposed. Some see it as the Patriot Act on steroids.

The clause isn’t as much of a problem as distrust of how the government will interpret it. The President and the FBI are opposed to the clause which passed with mostly Republican votes, 16 Democratic votes and 1 Independent vote. The frustration over how to deal with homegrown terrorists and terrorists captured on U.S. soil is driving this.

An amendment to strike down the detainee clause was proposed this week and defeated 38 to 60.

This is the troublesome wording in the detainee clause – it authorizes the president to use “all necessary and appropriate force” to detain people suspected of terrorism, and also calls for al-Qaeda fighters who plot or carry out attacks against the U.S. to be held in military custody. It also allows the president to decide which detainees fit that definition and permits the government to hold suspected al-Qaeda members in civilian custody if it is determined to be in the interest of U.S. national security. However, it specifically states in sec. 1031(b) that military detention does not apply to U.S. citizens or legal residents, but only American al-Qaeda, Taliban, and their affiliate terrorist groups.

Senator Udall has problems with the language which he believes could eventually be applied to all U.S. Citizens.

Republican Rand Paul who, along with Republican Mark Kirk, voted with the Democrats to remove the detainee clause, and said, “I’m very, very, concerned about having U.S. citizens sent to Guantanamo Bay for indefinite detention. It is not enough just to be alleged to be a terrorist. That’s part of what due process is — deciding, are you a terrorist? I think it’s important that we not allow U.S. citizens to be taken.”

Sen. Dianne Fernstein, D-Calif., expressed similar objections, “We are not a nation that locks up its citizens without charge.” Fernstein has proposed another amendment to defeat the provision.

The bill also allows the military to be deployed on U.S. soil, but that could be done without this bill, contrary to popular belief. Certainly, we all know the National Guard can be deployed and the Posse Comitatus Act of 1878 never precluded the use of military on U.S. soil. That section does, however, concern President Obama.

Some on the right are concerned that the provision is actually part of a plan by this administration to lock up citizens who oppose him. Obama is opposed to the provision, period.

The Republicans who want this provision believe it will strengthen our intelligence gathering and provide better protection for our fellow citizens.

The wording could be changed to make it more acceptable, but who knows if that will happen. People have to make up their own minds on this one, but, for those opposed, be comforted to know that the Senate can’t agree on anything and the President will veto it. Read more details here: Detainee clause and S-1867