On the Feinstein-Lee Amendment

Last evening (November 29, 2012) the U.S. Senate passed Amendment #3018, the so-called Feinstein-Lee Amendment, AKA “the Prohibition on the Indefinite Detention of Citizens and Lawful Permanent Residents.”

There has been some controversy over this Amendment. Some have lauded it as Congress finally doing something to protect the Constitutional and civil rights of Americans, while others have claimed that it does no such thing.

We read through the text of the Amendment[PDF] and our opinion is that it does not protect Constitutional rights.

We see two specific problems with the Amendment. The first problem is that it specifically applies to “a citizen or lawful permanent resident of the United States apprehended in the United States.” Where addressing the right to trial, the US Constitution draws no lines between US citizens, permanent residents, and anyone else. The Constitution refers to “Persons,” in these contexts, and clearly means to lay out how US Law is to treat ALL PERSONS. In addition to this, the text of the Amendment affords no form of due process protection for anyone (regardless of their citizenship status) who is apprehended outside the United States which we take as antithetical to the spirit, if not the letter, of the Constitution.

The second, and much greater problem is the phrase that comes next in the text of the Amendment which is: “unless an Act of Congress expressly authorizes such detention.” This little phrase extends to Congress the exact same blatantly unconstitutional, totalitarian, dictatorial power to impose indefinite detention upon anyone it chooses to that which the original 2012 NDAA granted to the President and which prompted us to build this website.

Our take is that the Feinstein-Lee Amendment, in the guise of protecting Constitutional rights, has instead simply extended the unconstitutional powers that the 2012 NDAA granted to the President, also to the Congress.


See also: Legal Wrangling over Feinstein-Lee