``(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the National Defense Authorization Act For Fiscal Year 2013.
``(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.”
The final clause of (b)(1) has attracted some criticism, including from Representative Justin Amash (RLC-MI) who whote:
"The Feinstein amendment to the 2013 NDAA does NOT protect you from indefinite detention without charge or trial. In fact, it explicitly permits such detention so long as the detention is approved by an Act of Congress . . . such as the 2012 NDAA."
Prior to the amendment the NDAA permitted detentions solely on presidential authority, but Amash and others are concerned that Congress could use the option provided in the amendment to reverse the protection at will, or that courts could interpret the NDAA itself as such an authorization.
However, a federal court did already grant an injunction against the detention provision in the NDAA and it is likely that if it were further tested in the courts it would be found unconstitutional. In addition, changes to the main text of the 2012 version of the NDAA which actually expand detention authority beyond earlier versions demanded that some response be made to protect civil liberties
While this is not a perfect victory, it remains a major win for civil libertarians who do not believe that the people should have to sacrifice their most sacred rights, nor should the nation abandon the rule of law, even in a times of crisis or war. If the Bill of Rights can be discarded just because we feel threatened, then we have already thrown away the very values for which we fight as a nation.