The Feinstein Amendment does not fix the Constitutional infirmities in the 2012 NDAA. Neither does proposed language in the 2013 NDAA. Congress is now poised to reaffirm the President’s ability to prosecute persons within the USA through military tribunals, allow continued indefinite detention without charge or trial, and do nothing to limit the practice of extraordinary rendition.
The most troubling provisions of section 1021 of the 2012 NDAA provide that all persons within the USA – including U.S. citizens – whom the President unilaterally determines “substantially supported” the Taliban, Al Qaeda or “Associated forces” may be designated as enemy combatants. They may be subject to indefinite detention, extraordinary rendition (the transfer to foreign jurisdiction or entities) or military tribunals. Importantly, one’s “substantial support” does not have to be knowing or willful.