That is not true.
The Executive Branch has had that power since WWII and has only increased its disregard for the Constitution with bills such as the Patriot Act and the NDAA.
In a Washington Post OpEd written by Senators John McCain (R-Ariz) and Carl Levin (D-Mich), the senators explain that the bill simply codifies what the Supreme Court has upheld and multiple presidents have been doing all along: holding suspected terrorists without charging them or giving them a lawyer and a trial.
The bill, which is voted on each year to authorize the budget for military spending, includes additional verbiage that 93 senators agreed to, and only 7 opposed.
Under the bill, the Executive Branch can hold anyone, citizen or not, if they are suspected of terrorism, on American soil or overseas, until the end of hostilities. Once hostilities are over (we have to use those words because America has not officially declared war), the suspected terrorists will receive due process under the Uniform Code of Military Justice.
So essentially, terrorists will receive due process, in a military tribunal and not a civilian court, unless the Executive Branch deems otherwise.
Currently the president can decide without any proof as far as I can tell, that anyone, American citizens included, is a terrorist. That person is then denied a lawyer, denied their Miranda Rights and held without charge until the “end of hostilities.”
In the OpEd written by McCain and Levin, they admitted that the NDAA does not “interrupt ongoing surveillance operations or interrogations or damage time-sensitive anti-terrorism operations. In fact it specifically prohibits the interruption of ongoing surveillance, intelligence-gathering or interrogation sessions.”
This means that the unconstitutional Patriot Act, where the administration can spy on anyone, even American citizens, without a warrant or probable cause will continue.
Senators and others use the example of Anwar Al-Awlaki, an American citizen killed in Yemen by the U.S. military (those with him were also killed) after being accused of being a terrorist, as justification for the bill.
But what happens if you are Abdullah al-Kidd, an American citizen who played running back for the University of Idaho, who was arrested on suspicion of knowing terrorists although there was never any proof against him? He was eventually set free after enduring jail time, being left naked in his jail cell and being forced to shower for 90 minutes in front of other men and women, according to news reports.
Our Constitution states the government cannot arrest citizens and non-citizens without probable cause and a warrant. Now the Supreme Court, the Patriot Act and the NDAA supersede our Constitution.
There were other portions of this bill that justified the NDAA going through. Sen. Orrin Hatch (R-Utah) included an amendment to allow certain operations to continue at Hill Air Force base.
“The Defense Authorization bill addresses everything from troop pay to medical care for veterans to the maintenance of military facilities like Hill Air Force Base,” Hatch said in a statement to The Clipper.
“This year I was able to include an amendment that ensures we have an appropriate plan in place for the maintenance of solid rocket motors, which are built and maintained in Utah. The bill is passed every year to make sure our service members at home and abroad have the resources they deserve.”
However, there were three amendments proposed to this bill to remove the portions that stated American citizens could be held without due process. The Senate shot down all three of those amendments, as did Hatch.
He defended that vote, saying: “The detainee provisions in the legislation were thoroughly debated, resulting in specific language that received overwhelming bipartisan support. It is imperative to note that bill doesn’t make any changes to detainee authority as it relates to American citizens.
“This fact is made clear in the legislation, which specifically states that nothing in the bill can be construed to affect existing law or authorities relating to the detention of United States citizens. The bill also ensures that terrorists like 9/11 mastermind Khalid Sheikh Mohammed continue to be held overseas, rather than brought to New York to enjoy the same constitutional protections afforded to American citizens.”
Senator Mike Lee (R-Utah) also voted against the first amendment, 1107, saying it would have “struck the sections on detainee treatment from the bill and punted the policy back to the Administration to come up with an alternate proposal in the next 30 days on how to handle American enemy combatants.”
Lee did, however, vote for amendment 1126 which he said would have fixed the problem indefinitely detaining American citizens without trial with an outright prohibition. The amendment read: The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.
When the amendment failed, Lee was one of the seven senators to vote against the NDAA altogether. (Lee’s website has a link to a YouTube video where he discusses why it is imperative we vote against detaining citizens without trial.)
As Hatch stated, the act only codifies what the Supreme Court already says is the law. But that doesn’t make it right and I stand by the seven who put our Constitutional rights above all else.