Only in the United States Congress could they make a problem of their own making worse by adopting a (perhaps) well intentioned, yet misguided amendment. And moments ago they did just that by adopting the Gohmert amendment to the FY 2013 NDAA.
Two days ago, a U.S. District Court judge confirmed that our criticisms of Section 1021 and 1022 were correct by issuing a temporary stay on the enforcement of Section 1021 and declaring it unconstitutional. Today, the House had the opportunity to fix their mistake, and they blew it.
While the Smith/Amash amendment would have prevented the indefinite detention of persons arrested on U.S. soil by guaranteeing their right to be charged and a trial, the Gohmert amendment simply reaffirms that individuals have habeas corpus rights, though it narrows the scope of those who have it to those who are here "lawfully." And, it will likely make things worse according to Steve Vladeck from Lawfare:
First, it introduces uncertainty regarding whether individuals arrested within the United States but out of immigration status are entitled to pursue habeas relief (never mind the countless immigration cases where such relief has historically been available—and the compelling constitutional arguments supporting that jurisprudence). Second, the 30-day provision would arguably allow the government to preclude a detainee’s access to court (or counsel) for 30 days, whereas under current law, the detainee may file the moment he is “in custody under or by color of the authority of the United States.”
The Smith/Amash amendment was voted down by a vote of 182-238, while the Gohmert amendment was adopted by a vote of 243-173.
The Gohmert amendment will now serve as a smokescreen to allow those who wanted to appear to be protecting your civil liberties to claim they've done their job. It's up to you to remind them they haven't.
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