The House Just Voted Against Ending Indefinite Detention. Which 13 Democrats Went Along?

This afternoon, the House of Representatives voted on a series of amendments to the National Defense Authorization Act (NDAA).  Adam Smith (WA-09) and Chris Gibson (NY-19) offered an amendment that would ban indefinite detention.  The practice of indefinite detention, used in Guantanamo Bay, is a flagrant violation of the 5th Amendment.  In case you need a refresher, that amendment reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On December 31, 2011, Obama signed the 2012 NDAA, codifying indefinite military detention without charge or trial into law for the first time in American history.  Obama had previously promised to veto the NDAA because of said provision, but (shocker!) he signed it anyway. The ACLU explained the historic nature of this assault on the Constitution and the principles of liberty and justice and highlighted its far-reaching effects in the following way:

The law is an historic threat because it codifies indefinite military detention without charge or trial into law for the first time in American history. It could permit the president – and all future presidents – to order the military to imprison indefinitely civilians captured far from any battlefield without charge or trial.
This kind of sweeping detention power is completely at odds with our American values, violates the Constitution, and corrodes our Nation’s commitment to the rule of law, which generations have fought to preserve.

The breadth of the NDAA’s worldwide detention authority violates the Constitution and international law because it is not limited to people captured in an actual armed conflict, as required by the laws of war.

Under the Bush administration, claims of worldwide detention authority were used to hold even a U.S. citizen captured on U.S. soil in military custody, and many in Congress assert that the NDAA should be used in the same way.  The ACLU does not believe that the NDAA authorizes military detention of American citizens or anyone else in the United States. Any president’s claim of domestic military detention authority under the NDAA would be unconstitutional and illegal.  

The law does not require even an allegation that a detained person caused any harm or threat of harm to the United States or to any U.S. interest. Mere allegation of membership in, or support of, an alleged terrorist group could be the basis for indefinite detention. Under the American justice system, we don’t just lock people up indefinitely based on suspicion.

If you are interested in seeing the roll call votes for the House and Senate passage of the 2012 NDAA, you can find them here.  The bill passed the House 283 (190R, 93D) to 136 (93D, 43R).  It passed the Senate 86 (45D, 40R, 1I) to 13 (6D, 6R, 1I).   The 13 Senate opponents were the following:

Ben Cardin (D-MD)
Tom Coburn (R-OK)
Mike Crapo (R-ID)
Jim DeMint (R-SC)
Dick Durbin (D-IL)
Al Franken (D-MN)
Tom Harkin (D-IA)
Mike Lee (R-UT)
Jeff Merkley (D-OR)
Rand Paul (R-KY)
Jim Risch (R-ID)
Bernie Sanders (I-VT)
Ron Wyden (D-OR)

The moral atrocity of Guantanamo Bay will not end by simply relocating the inmates.  Closing down Guantanamo Bay prison would mark the end of a shameful symbol of Americanimperialism as the U.S. demanded that Cuba write concessions for coal and naval bases to the U.S. into its constitution in order to gain independence in 1901.  The U.S. had gained possession of Cuba after the War of 1898/Spanish-American War, in which the U.S. had--as it often does--claimed at first to be helping the Cuban rebels to free themselves from Spanish dominion.  Many, thinking they were engaging in a humanitarian intervention, naively supported the effort.

Whenever Obama has spoken about closing Guantanamo Bay Prison, he only speaks of the physical entity itself, not the practice of indefinite detention by which it operates. When Obama attempted to close Gitmo in 2009, he lost the support of civil liberties champions like Russ Feingold and Bernie Sanders and the ACLU itself because the plan he put forth would have simply created a "Gitmo North," transferring the practice of indefinite detention to the U.S.  Glenn Greenwald described the plan as "classic Obama: a pretty, feel-good, empty symbolic gesture (get rid of the symbolic face of Bush War on Terror excesses) while preserving the core abuses (the powers of indefinite detention ), even strengthening and expanding those abuses by bringing them into the U.S."

Returning to today's affairs, Rep. Adam Smith put forth two Gitmo-related amendments to the NDAA. The first, co-sponsored by Jerry Nadler and Jim Moran, would provide a framework to close the Guantanamo Bay detention facility by December 31, 2014. That one, as of yet, did not get a vote.  The second, which received a vote today, was co-sponsored by Republican Chris Gibson and would prohibit the practice of indefinite detention.  I've included some of the key language below:

   (g) DISPOSITION OF PERSONS DETAINED IN THE UNITED STATES.

              (1) PERSONS DETAINED PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE OR THE FISCAL YEAR 2012.  In the case of a covered person who is detained in the United States, or a territory or possession of the United States, pursuant to the Authorization for Use of Military Force, this Act, disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States.

               (2) PROHIBITION ON TRANSFER TO MILITARY CUSTODY.—No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, this Act, or the National Defense Authorization Act for Fiscal Year 2013.

    (h) RULE OF CONSTRUCTION.

           This section shall not be construed to authorize the detention of a person within the United States, or a territory or possession of the United States, under the Authorization for Use of Military Force, this Act.

The Smith-Gibson amendment failed 200 to 226.  181 Democrats and 19 Republicans voted in favor of the bill, and 13 Democrats and 213 Republicans voted against it.

The 13 Democrats who just voted against preventing indefinite detention are the following:

John Barrow (GA-12) –Blue Dog
Jim Costa (CA-16) – Blue Dog
Henry Cuellar (TX-28) – Blue Dog
Pete Gallego (TX-23) – Blue Dog
Sander Levin (MI-09)
Daniel Lipinski (IL-03)
Sean Maloney (NY-18) – New Democrat
Jim Matheson (UT-02) – Blue Dog
Mike McIntyre (NC-07) –Blue Dog
Bill Owens (NY-21) – New Democrat
Dutch Ruppersberger (MD-02)
Loretta Sanchez (CA-46) –Blue Dog
Filemon Vela (TX-34) – New Democrat

I would fondly say that these folks just defecated on the Constitution.

The following 19 Republicans broke with the party line to vote FOR the amendment and should be commended for their vote.

Justin Amash (MI-03)
Kerry Bentivolio (MI-11)
Paul Broun (GA-10)
John Duncan (TN-02)
Chris Gibson (NY-19)
Paul Gosar (AZ-04)
Morgan Griffith (VA-09)
Tim Huelskamp (KS-01)
Walter Jones (NC-03)
Raul Labrador (ID-01)
Thomas Massie (KY-04)
Tom McClintock (CA-04)
Tom Petri (WI-06)
Bill Posey (FL-08)
Reid Ribble (WI-08)
Mark Sanford (SC-01)
John Shimkus (IL-05)
Scott Tipton (CO-03)
Ted Yoho (FL-03)

There were a total of 8 who weren't there to vote: Campbell, Chu, Fattah, Lewis, Markey, McCarthy (NY), Neal, and Shea-Porter.  Otherwise, all Democrats except those listed above voted for it, and all Republicans except those listed above voted against it.  I'd suggest giving your representative a call of thanks or or displeasure accordingly.