A bid to guarantee that no US citizen would be subject to indefinite detention by the government has failed in the House of Representatives. The bipartisan amendment, from Reps. Adam Smith (D-WA) and Justin Amash (R-MI), failed on a 182-237 vote. While President Obama has announced his intention not to use the rules granted in the National Defense Authorization Act (NDAA) Section 1021, codifying them into law raises the possibility of this or another President using them at their discretion in the future.
This comes as a federal judge has ruled that section 1021 violates the First Amendment. The case was brought by journalists and activists concerned that the “material support for terrorism” standard for potential indefinite detention in the law was too vague and could infringe on their freedom of speech and of the press. Judge Katherine Forrest put a preliminary injunction against sections 1021 and 1022 of the NDAA, which deal with indefinite detention, barring enforcement of these provisions.
So, the House beat back an attempt to fix a law that a federal judge just found unconstitutional.
House Minority Leader Nancy Pelosi expressed disappointment that the Smith-Amash amendment was unable to pass:
Last year, when President Obama signed the National Defense Authorization Act, he laid out his concerns regarding provisions that would have allowed for indefinite detention of American citizens and required that certain individuals captured even on US soil be held in military custody. The Smith-Amash amendment would have addressed these concerns, righting a wrong that flies in the face of our commitment to protect the American people and have the proper balance between security and liberty.
I’m disappointed that Republicans in the House failed to join the vast majority of Democrats in supporting this amendment to realign detention policy with the U.S. Constitution.
The roll call is not yet available; when it is, it will appear here.
It was unlikely that the Senate would follow the House on the Smith-Amash amendment anyway. So it appears that the only venue left for stopping this indefinite detention law is in the courts. Activists have thrilled to Judge Forrest’s decision in recent days. “Judge Forrest has splendidly defended the Constitution—which has been under almost continuous attack by the Bush and Obama administrations—by abrogating the NDAA, the latest assault on the First and Fifth Amendments. It’s a great day for all who want to live in a free society,” according to one of the plaintiffs, former Pentagon Papers whistleblower Daniel Ellsberg.
Demand Progress, one of the main groups in a coalition seeking to overturn the indefinite detention language, provided 300,000 petitions from the website StopNDAA supporting the amendment today, but to no avail.
As Judge Forrest wrote, “There is a strong public interest in protecting rights guaranteed by the First Amendment.” Apparently not according to the US House of Representatives who were unmoved by the lawsuit’s success.
UPDATE: Adam Serwer reports that House Republicans, who almost all opposed the Smith-Amash amendment, approved a “hoax fix”:
Republicans opposed to the Smith-Amash amendment proposed a hoax fix that “reaffirms” Americans’ right to habeas corpus. Only the right to habeas was never in question, so their proposal wouldn’t actually do anything. The proposal is a complete non-sequitur, a bad-faith attempt to prevent Smith and Amash from closing a gaping “terrorism exception” to Americans’ due process rights. That amendment passed by almost the same overwhelming margin that the Smith-Amash amendment failed, by a vote of 243-173.