Dianne Feinstein gets one right, by @DavidOAtkins

Dianne Feinstein gets one right

by David Atkins

I’ve given Dianne Feinstein a lot of criticism over the years for her generally conservadem stances on a wide variety of issues. But on the awful issue of unilateral executive indefinite detentions, she’s going out of her way to do the right thing with the Due Process Guarantee Act of 2011:

(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the Due Process Guarantee Act of 2011.

Emptywheel has a smart take on it:

The language seems sound enough to me. And given that this wouldn’t constrain the President’s ability to detain (or kill) Americans in Yemen, the Obama Administration might not put up as big of a fight as it did with the detainee provisions (though I suspect they would fight it, because of all the other things that rely on detention language–they’d have to rewrite a bunch of OLC memos).

Of course all that assumes this would be passed before President Newt takes over; he’d never sign something like this.

But the other thing is that DiFi has a habit of introducing very simple language and getting pushed around by the Executive, effectively letting the President tweak such language out of existence (see also her “exclusivity provision” in the FISA Amendments Act).

I think if she could get a vote, with this language, she might just win.

I’ve said before that current nation-state-based legal frameworks are inadequate to deal with many aspects of the modern world, including climate change and international terrorism.

There needs to be a way of dealing with avowed terrorists, Al-Qaeda recruiters and proclaimed violent enemies of the United States who ensconce themselves in failed state war zones avoiding capture–regardless of whether they happen to have been born in the United States. Such people shouldn’t feel safer from retribution simply for having been born on American soil, than their fellow Al-Qaeda recruiter who happened to have been born elsewhere.

But there obviously needs to be a way of dealing with it that doesn’t give the American President carte blanche to murder and detain whomever the heck he or she wants based on a trial-free presumption of guilt.

Currently, there is no such system due to the legacy of nation-state legal frameworks. It’s one or the other. Given the dual choice, it’s certainly better to allow the American-born terrorist to roam free than to give the President terrifying and unconstitutional powers.

But that’s not exactly a satisfying answer, and whatever the very valid legal civil liberties concerns may be, the political reality is that most Americans aren’t going to shed any more tears for Al-Awlaki than they did for Julius and Ethel Rosenberg. That genie is out of the bottle and it’s not going back in.

Feinstein’s solution is far from perfect: an imperial President could simply lock up political enemies and throw away the key if they ever stepped foot outside the U.S. The problem is the entirety of the legal framework. But at least it presents a stop-gap to prevent the most horrific potential Stasi-style abuses. So bravo to DiFi for this one.