I’ve been trying to figure out this Defense Authorization Bill and Udall Amendment business for a while now, and I’m only getting more confused. The Wikipedia article is less than helpful, and the discussion isn’t doing anything for me either. I’m trying to figure out whether I’m in favor of this petition to veto the act or not. So what I’m going to do is, I’m going ask myself a bunch of questions (with the ultimate question answered last), and then see if I can answer them:
What is the status of the Udall Amendment?
The Udall amendment is dead. It was rejected by the Senate (ignore for the time being the fact that the title of the article says that the Senate “OK’s Controversial Provision”)
What did the Udall Amendment say?
The Udall Amendment would have stripped out a controversial provision (or “proposed amendment” according to some sources) AKA Subtitle D of Section X of the Authorization Bill, and replaced it with a requirement that the Secretary of Defense make some sort of report to Congress about something or another. See the full text here (most of it isn’t important, mainly the heading).
What was the controversial provision that the Udall Amendment would have stripped?
The Udall Amendment would have removed three different provisions – wait – there’s more than three provisions in section D, so…let’s just say it removes section D of Title X and I’ll arbitrarily divide it into three parts. Here are the provisions (these are the ones still in the bill in its current form, NOT the Udall Amendment, which was rejected) :
- The military will be authorized to immediately detain anyone that it deems to meet either of the following criteria: A) the person “planned, authorized, committed, or aided” or “harbored those responsible” for the 9/11 attacks, or B) The person “was a part of or substantially supported” the Taliban, Al Qaeda, or “associated forces that are engaged in hostilities against the United States and its coalition partners” including anyone “who has committed a belligerent act” or “directly supported” such an act. Note the various interpretations possible of the words “authorized” “aided” “harbored” “supported”, etc. Expect the military to interpret those words strictly? BUT the section also says that it “should not be construed” to affect “existing law” regarding arrest of US Citizens (and what is the “existing law”??? See more on this in the next question).
- The military is required to hold any person captured “in the course of hostilities” who is a member of Al Qaeda & Associates or has planned/attacked the US/coalition partners. This provision clearly states that it does not apply to US Citizens/resident aliens (why is the language less certain in the prior section?). The FBI therefore cannot ask that a suspect be transferred to its control for a civilian trial.
- (heavily summarizing) Certain detainees must stay at Guantanamo Bay and can never leave. No detainees are allowed to be kept in the US mainland. Procedures regarding status determinations, guilty pleas, and death sentences are codified and/or altered.
(see page 426-445 of this version of the bill for the exact text)
Does the Defense Authorization Bill in it’s current form allow American citizens to be detained in Guantanamo Bay? (if the answer is yes, I want it vetoed).
Maybe. What the language of the first, most controversial sections suggests is that this was debated and settled on (just now I find this, after I’ve already figured it out) with vague language saying “existing law” will not be changed with regard to citizens. The problem with this language is that it effectively gives that military the power to determine what “existing law” is regarding its ability to detain US citizens. The military, mind you, is not a guy named Todd Military with one mind, but a group of people accountable to the President, but not always under his effective watch. What some of them deem to be the “existing law” will not match what others think about the “existing law.” And chances are, the military leaders that will have the most expansive definition of the powers granted by the “existing law” will be the least deserving of those powers.
So, the answer is close enough to “yes” for me. I’m also against the whole idea of sending terrorism suspects to Guantanamo Bay, where they are farthest from public scrutiny as possible. I want this shit vetoed. If you do too, sign here.
Special Bonus: Click here to find your Senator, and see if they voted for or against the Feinstein Amendment, which would have more clearly exempted US citizens from being detained at Guantanamo Bay (Yes = wants to prohibit the military from kidnapping you and sending you to Guantanamo Bay, No = wants the military to have the power to kidnap you and send you to Guantanamo Bay).