The National Defense Authorization Act merely codifies existing law. It does not expand the government's powers to detain suspected terrorists.
Last week, the Senate voted 93-7 to pass S 1867, the National Defense Authorization Act. Congress has passed this Act every year since 1961. The Act sets policy and outlines financial and legal specifications for the U.S. Department of Defense, such as benefits for military personnel and purchase of equipment. The ACLU, Occupy San Francisco and other left wing groups are hysterically protesting that one of its provisions encroaches on civil liberties, and Obama has threatened to veto it. Section 1032 states that suspected terrorists related to al Qaeda and 911 shall be detained indefinitely by the military without a civilian trial until the end of authorized military hostilities.
The Senate Foreign Service Committee leadership asserts that the controversial provision merely codifies existing law. Liberal columnist Glenn Greenwald writing for Salon agrees, “…it doesn’t actually change the status quo all that much.” In Hamdi v. Rumsfeld (2004), the U.S. Supreme Court held that U.S. citizen and suspected terrorist Yaser Esam Hamdi could be held indefinitely as an “illegal enemy combatant.” However, the court qualified it by saying that U.S. citizens have the right to challenge their enemy combatant status before a judge. U.S. citizen and accused terrorist Jose Padilla, aka the dirty bomber, was arrested in the U.S. and held by the military without a trial for three and a half years. The Fourth Circuit has upheld his detainment.
Section 1032 applies to both terrorists arrested overseas and on U.S. soil. An amendment failed that would have exempted U.S. citizens. U.S. citizens are not included in the mandatory detention provision, instead the bill states that they may be detained, and an amendment was added giving the president the option to give them a civilian trial instead.
A compromise amendment was adopted which recognizes that existing laws regarding U.S. citizens suspected of terrorism shall be respected. An amendment by Dianne Feinstein (D-CA) to limit military detentions to only those captured overseas failed by 55-35, and an amendment by Mark Udall (D-CO) to strip out the entire detention provision failed by 67-31.