Legislation was considered late Thursday night to specifically ban the indefinite detention of persons detained on American soil on suspicion of terrorism.
It was an amendment to the National Defense Authorization Act for Fiscal Year 2013, and would settle the most controversial facet of the last NDAA bill, signed into law on New Year's Eve, which some say allows for American citizens to be indefinitely detained by military authorities.
The Smith-Amash Amendment discussed Thursday night would specifically ban that from happening, changing the law to say instead that anyone arrested in the U.S. under NDAA would receive due process in civilian court.
At 12:10 a.m. on May 18, Congressman Allen West took the floor in the House of Representatives and said the amendment should be shot down.
He said "we're all on this battlefield" in the war on terror, and that he was opposed to extending constitutional protections to anyone accused of terrorism charges.
"I rise in opposition to this amendment," West said. "We cannot look to guarantee to those who would seek to harm us the constitutional rights that are granted to Americans."
The amendment was put forward by a bipartisan coalition of liberals and libertarians led by Michigan Republican Justin Amash and Washington Democrat Adam Smith, the ranking member of the House Armed Services Committee on which West serves.
Debate on the floor earlier Wednesday revealed opposition from the right, including California Republican Rep. Buck McKeon, the chairman of the House Armed Services Committee, who said it was dangerous to limit the military's ability to prosecute terror suspects.
West has drawn ample fire from supporters for his vote in favor of the NDAA bill passed in December, and, despite West's early insistence to the contrary, a federal judge in New York blocked enforcement of the bill Wednesday after determining that "the vagueness of Section 1021 does not allow the average citizen, or even the government itself, to understand with the type of definiteness to which our citizens are entitled, or what conduct comes within its scope."
But given the opportunity to clarify -- and limit -- the legislation, West instead spoke out in the opposite direction.
After debate on a different NDAA amendment from McKeon, Smith rose to defend his.
"Our justice system works," Smith said Thursday night. "This is an extraordinary amount of power to give the president... This is our opportunity to repeal it."
Amash, who was elected alongside West in 2010 with strong support from the Tea Party, spoke in favor of the amendment as well.
"The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them, and not give them a charge and a trial," Amash said. "That's the frightening thing. That's the thing that the Smith-Amash Amendment fixes."
West spoke next. Here are his complete remarks:
I rise in opposition to this amendment. I find it very interesting that back in 1942, when there were German Nazi saboteurs that were captured off the coast of Long Island, that they were prosecuted in a military commission. One of them was sentenced to 30 years' imprisonment; others were sentenced to death.
And I understand that this is a different type of battlefield that we're on. The 21st-century battlefield. We're all on this battlefield. No one would have ever thought that Major Malik Nadal Hasan [sic] would stand in Fort Hood, Texas and shoot 43 Americans, and 13 of those would be killed.
I find that we have to understand that we are at a war. We are not in a police action. We cannot look to guarantee to those who would seek to harm us the constitutional rights that are granted to Americans. If we extend that to them, then we are starting to say that this war on terror now is a criminal action. And I find it very interesting that a sponsor of this amendment is the Council for American-Islamic Relations [sic] that is a co-conspirator, unindicted co-conspirator for the largest terrorist financing-"
West was then informed that his allotted time had expired. He appeared to be winding down his remarks -- a generally accepted move on the floor -- but was instead interrupted by Smith saying, loudly, "Will the gentleman yield? Will the gentleman yield?"
"I don't have any time to yield to you," West said, and left the podium.
Smith, with the floor, then said, "I point out that only members of Congress are allowed to sponsor amendments."
Ultimately, Smith requested a recorded vote, which means final action on the amendment will be delayed. But West, we now know, will not support it.
The full text of the amendment is available online; in summary, it reworks the two most controversial segments of the NDAA, Sections 1021 and 1022.
In Section 1021, the amendment would insert two subsections: The first says anyone who is "detained in the United States, or a territory or possession of the United States" shall be immediately transferred to the U.S. court system "for trial and proceedings... Such trail and proceedings shall have all the due process as provided for under the Constitution of the United States."
The second subsection added to Section 1021 says, "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."
NDAA Section 1022 requires that foreign nationals detained under Section 1021 be held and prosecuted by the U.S. military, and provides the option for, but does not require, U.S. citizens to be detained by the military as well. The Smith-Amash Amendment would repeal that section entirely.