Ceding Liberty to Terror: Senate Votes Against Due-Process Rights
By CONOR FRIEDERSDORF
DEC 2 2011, 11:17 AM ET
Asked to deny presidential authority to indefinitely detain Americans without charges or a trial, they declined, citing the threat of al-Qaeda.
Is it lawful for the president to order any American held indefinitely as a terrorist, without formal charges, evidence presented in open court, a trial by jury, or a standard of “guilty beyond a reasonable doubt”? The U.S. Senate had a chance Wednesday to assert that no, a president does not possess that power — that the United States Constitution guarantees due process.
Sen. Dianne Feinstein (D-Calif.) urged her colleagues to seize the opportunity. “We as a Congress are being asked, for the first time certainly since I have been in this body, to affirmatively authorize that an American citizen can be picked up and held indefinitely without being charged or tried. That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War II,” she said. “What we are talking about here is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever.”
Sen. Dick Durbin (D-Ill.) agreed.
“If we believe an American citizen is guilty or will be guilty of acts of terrorism, can we detain them indefinitely?” he said. “Can we ignore their constitutional rights and hold them indefinitely, without warning them of their right to remain silent, without advising them of their right to counsel, without giving them the basic protections of our Constitution? I don’t believe that should be the standard.”
In the end, however, Feinstein and Durbin lost the debate.
The U.S. Senate refused to affirm that American citizens arrested in the United States shouldn’t be subject to indefinite military detention on the president’s order. Senator Feinstein’s amendment to that effect went down in defeat with 55 historic votes against it….