Senate Votes Overwhelmingly To Allow Indefinite Detention of Citizens

In one of the greatest attacks on civil liberties in this country’s history, Democratic and Republican Senators voted yesterday to approve a measure as part of the $662 billion defense bill that would allow for the military to hold both citizens and non-citizens indefinitely without trial — even those arrested on U.S. soil. In a welcomed change, President Obama has committed his Administration to fighting the measure as inimical to the rule of law. The measure was pushed by Carl Levin (D – Michigan) and John McCain (R – Arizona). While some members of Congress like Ron Paul (R., Texas) have denounced the bill, the measure passed at the same time that Administration lawyers publicly declared that the military and intelligence agencies alone should decide whether a citizen should be killed without a charge or hearing (including killing citizens on U.S. soil) — a position supported by President Obama who has ordered the killing of U.S. citizens under his claim of inherent authority.

Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, tried to pass an amendment that would have limited it to suspects captured “abroad” — a measure that still raised constitutional and international law problems. However, even that modest amendment failed on a vote of 45 to 55. Here is the voting roster, which includes Democrats Begich (D-AK), Casey (D-PA), Levin (D-MI), Inouye (D-HI), Landrieu (D-LA), Manchin (D-WV), McCaskill (D-MO), Pryor (D-AR), as well as independent Lieberman (ID-CT). A watered down amendment was then passed 99-1 that left the matter (it would appear) to the Administration. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.

Virtually all Democrats and Republicans voted to strip citizens of their rights in a vote of 93-7.

What is fascinating is the Senators insisted on passing the provision despite the fact that the Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all opposed it on national security and legal grounds. Nevertheless, people like McCaskill who are running for reelection want to prove that they are tough on terrorism by stripping citizens to the right to basic due process rights. The fact that the Democratic and Republican Senators took this step without even holding a hearing is a testament to the state of civil liberties in the United States.

It is unclear whether the President will have the integrity and courage to carry through on this pledge to veto this pernicious bill. For civil libertarians, we have reached our Alamo moment where the most basic principles of the rule of law are at stake. The Congress has long been indifferent if not hostile to civil liberties, but as discussed in an earlier column (and here), civil liberties has reached one of the lowest ebbs in both politics and policy in this country’s history. Such measures are now met with a gigantic and collective shrug from an indifferent populace.

The national debate has become positively otherworldly for civil libertarians. As the Senate set about rolling back civil liberties, Administration lawyers — CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson — publicly explained to an audience this week that the decision whether to kill a U.S. citizens anywhere and anytime must be left solely to the discretion of the military and intelligence branches. President Obama has supported this view and claims the right to kill any citizen on his unilateral and unchecked executive authority. I discussed this horrific policy in a prior column (and here).

How did we come to this place? Well, it took the joint efforts of both parties and a country that has been lured into a dangerous passivity by years of war rhetoric. We now appear to define ourselves by our lifestyle rather than our rights. Being American appears to be treated as conclusory and self-evident — untethered to our defining principles. So in comes to this. The loss of the most basic right of citizens met not by applause but, even worse, a collective yawn.

Here is the Senate bill: BILLS-112s1867pcs

Source: Newser

134 thoughts on “Senate Votes Overwhelmingly To Allow Indefinite Detention of Citizens

  1. It was a pretty good run, really, 200 years is not along time but there were some very good ones. You might want to argue if we ended with a bang(9-11) or a whimper(Credit Default Swaps) but the militarized oligarchy pretending to be a republic appears to have arrived and I don’t see a recognition of the arrival let alone an organized resistance to it.

  2. Glenn Greenwald also takes this on in his column. In an update he writes: “UPDATE: Just to underscore what is — and is not — motivating the Obama administration’s objections to this bill, Sen. Levin has disclosed, as Dave Kopel documents, that “it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power,” on the ground it would unduly restrict the decision-making of Executive Branch officials. In other words, Obama officials wanted the flexibility to militarily detain even U.S. citizens if they were so inclined, and are angry that this
    bill purports to limit their actions.”

    I ‘m not certain why, but this vote hit me harder than Obama’s killing. As Greenwald points out, nothing about reality really changes with this vote. Obama has already claimed these powers for quite some time and he has acted on them, even murdering a 16 year old citizen. It’s really not possible to sink lower than that.

    But there was something horrific about so many of those in the “representative” wing of the govt. selling out the American people. I just keep thinking how we become more like Nazi Germany every day. Each actions Hitler took was made “legal” by the “representatives” of ordinary Germans. This is exactly the case in the US today. Every depravity, every shredding of the law is being made “legal” one by one. This complete betrayal of this nation and its people hits me hard.

    I also find myself enraged at the people of the US. Under the reign of Cheneybush, people remained largely silent as the secret govt. formed. Only civil libertarians and Democrats who objected to Bush as a personal matter spoke up. Once Obama came in, Democrats became the summer patriots. No illegality was too offensive for them now that one of their own was championing it. In this way, the secret govt. has become ratified into “law”. This left only the civil libertarians and a small few people of conscience in either major party to speak up.

    The truth is, it is a case of “First they came…” And this will not stop until our citizens stop being summer patriots, stop excusing, stop going along with such horrific acts against other human beings.

  3. “constitution, the constitution, were for ought the wonderful constitution”

    But for the fact that I know it is Living, I’d suggest that it is resting in peace.

  4. George,

    I agree with you. We clearly see this in action with the police state tactics towards OWS protesters. Of course, we have also seen this for a long time. Under Bush, Muslims were simply taken, tortured and thrown in the hole, end of story. The circle of “undesirables” that could be treated this way has expanded ever since that time.

    The US govt. is baring its fangs in an increasingly open manner.

  5. From Justice Antonin Scalia’s dissent in the Hamdi case:

    “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

  6. From a non-lawyer: Is this not clearly unconsitutional?

    Why are Dems supporting this? Do they want a police state or are they just cowards?

  7. The whole purpose of acts of terrorism is to get a terrorized people to change not just their conduct but their core beliefs. It is psychological warfare in its most intense form.

    Bin Laden’s victory represented by this odious bill’s abdication of American core values is nothing less than an unconditional surrender in the war against terrorism. The damage done by this bill is far worse than was done on 9-11.

    Thanks to the Congress of the United States, Bin laden is destined to be revered as one of the greatest Arabs and Muslims of all time.

    Allahu Akbar,indeed.

  8. From David Kopel:

    … it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power.

  9. Nal,
    It is scary to think that Scalia is on the correct side of this issue! Disastrous bill and it should be vetoed. I am shocked that Levin would have voted for this piece of crap.

  10. I think I have read this novel before. The next thing that happens is a deranged Dutch Communist named Marius van der Lubbe burns down the Capitol Building and the President suspends Congress and rules by decree until the danger is over.

  11. “The next thing that happens is a deranged Dutch Communist named Marius van der Lubbe burns down the Capitol Building and the President suspends Congress and rules by decree until the danger is over.”

    HenMan,

    Your mordant comment is I fear a 70/30 prospect on how this will play out in the long run. However, despite egregious errors by Obama on civil liberties, he won’t be the one in office when this occurs. That is the possible plan for the next President, who will be White and Republican. My own opinion for years has been that the country is heading for a Fascist Feudalism, spurred on by industrialists like the Koch Brothers, just as Hitler was backed by the Krupp’s and others in his bid for power.

    I agree with most of the other comments here except in one respect. What is occurring here is the result of a long term conspiracy arising from way before Eisenhower cautioned us to beware of the Military/Industrial Complex. A strain of thought running through American politics has always held that running the government is too complex a task to be left to the whims of the people. This loosely connected group sees themselves as not only the ones with sufficient understanding of the “needs” of this country, but also as the creators of its greatness. To their minds they are the Elite and thus the natural rulers.

    In the broad realm of foreign policy and terrorism the Elite believes that they truly understand the dangers to this country and that is why you get seemingly level headed Senators voting for this abomination. Through “inside” briefings, by purported experts, they have become convinced that the dangers to this country are far greater than reality indicates and so require extraordinary measures to keep us safe. Many of these “insiders” have been swayed by “Top Secret” information that is skewed to frighten them.

    In the end what is really going on is massive ego-centrism on the part of the
    Elite, that allows them to self-justify their actions and move us all towards a
    Feudal State that is Fascist in nature. They see this as democracy, not in its modern sense, but as it was practiced in Athens, where voting was limited to a narrowly defined citizenry that thought themselves the only ones with the perceptiveness to lead.

    I can’t blame the America people for their indifference and their eagerness to be led astray. Propaganda practiced on a large scale can convince anyone of anything, especially if you scare them first. The propaganda of the frightening “other” is a timeworn method of controlling the majority of populations and having them accede to the most horrible things.

  12. Moving to Scotland (or a few other choice locations) is looking better and better these days. I worry for my kids and grandchildren.

  13. Blouise, I think the votes on the amendments were the key votes. If they voted against the entire bill, they would be viewed as being anti the troops.

  14. Maybe the complacency that allowed the Third Reich to gain power, and the Neo-Con Corporatocracy to take control today, was/is really a collective catatonia. The stunning realization that even our own representatives have no intention of representing us, our military and police have no intention of protecting us, our employers have no intention of enlivening us (if one is even employed), and that our government’s emerging and overriding intention is to subdue and subtract from us. How do we go forward, unify, and empower ourselves? How long can this collective stultification last before we ultimately either succumb or revolt only time will tell it appears.

  15. In the ongoing War Against The Constitution, Wisconsin Governor Scott Walker has decreed that protests of four or more people will be charged $50.00 per hour for each police officer assigned to provide security, including officers brought in from outside the city. There are other restrictions as well, but you can read about it here:

    http://tpmdc.talkingpointsmemo.com/2011/12/walkers-new-plan-charge-protesters-big-money.php?ref=fpnewsfeed

    On the bright side, recall petitioners have already collected more than 300K signatures of the approximately 500K needed to recall Walker.

  16. SwM,

    I know … the amendment votes gave cover and Brown voted “properly” on all of them but… this turning the entire country over to the CIA under the guise of “a strong defense” is totally un-American and, quite frankly, I’m so ticked off I’m willing to have the whole Senate identified as a terrorist group.

  17. “CALPURNIA : Caesar, I never stood on ceremonies,
    Yet now they fright me. There is one within,
    Besides the things that we have heard and seen,
    Recounts most horrid sights seen by the watch.
    A lioness hath whelped in the streets;
    And graves have yawn’d, and yielded up their dead;
    Fierce fiery warriors fought upon the clouds,
    In ranks and squadrons and right form of war,
    Which drizzled blood upon the Capitol;
    The noise of battle hurtled in the air,
    Horses did neigh, and dying men did groan,
    And ghosts did shriek and squeal about the streets.
    O Caesar! these things are beyond all use,
    And I do fear them.

    CAESAR : What can be avoided
    Whose end is purposed by the mighty gods?
    Yet Caesar shall go forth; for these predictions
    Are to the world in general as to Caesar.

    CALPURNIA : When beggars die, there are no comets seen;
    The heavens themselves blaze forth the death of princes.

    CAESAR : Cowards die many times before their deaths;
    The valiant never taste of death but once.
    Of all the wonders that I yet have heard.
    It seems to me most strange that men should fear;
    Seeing that death, a necessary end,
    Will come when it will come.

    Re-enter Servant

    What say the augurers?

    Servant : They would not have you to stir forth to-day.
    Plucking the entrails of an offering forth,
    They could not find a heart within the beast.

    CAESAR : The gods do this in shame of cowardice:
    Caesar should be a beast without a heart,
    If he should stay at home to-day for fear.
    No, Caesar shall not: danger knows full well
    That Caesar is more dangerous than he:
    We are two lions litter’d in one day,
    And I the elder and more terrible:
    And Caesar shall go forth.

    CALPURNIA : Alas, my lord,
    Your wisdom is consumed in confidence.
    Do not go forth to-day: call it my fear
    That keeps you in the house, and not your own.
    We’ll send Mark Antony to the senate-house:
    And he shall say you are not well to-day:
    Let me, upon my knee, prevail in this.

    CAESAR : Mark Antony shall say I am not well,
    And, for thy humour, I will stay at home.

    Enter DECIUS BRUTUS

    Here’s Decius Brutus, he shall tell them so.

    DECIUS BRUTUS : Caesar, all hail! good morrow, worthy Caesar:
    I come to fetch you to the senate-house.

    CAESAR : And you are come in very happy time,
    To bear my greeting to the senators
    And tell them that I will not come to-day:
    Cannot, is false, and that I dare not, falser:
    I will not come to-day: tell them so, Decius.

    CALPURNIA : Say he is sick.

    CAESAR : Shall Caesar send a lie?
    Have I in conquest stretch’d mine arm so far,
    To be afraid to tell graybeards the truth?
    Decius, go tell them Caesar will not come.

    DECIUS BRUTUS : Most mighty Caesar, let me know some cause,
    Lest I be laugh’d at when I tell them so.

    CAESAR : The cause is in my will: I will not come;
    That is enough to satisfy the senate.
    But for your private satisfaction,
    Because I love you, I will let you know:
    Calpurnia here, my wife, stays me at home:
    She dreamt to-night she saw my statua,
    Which, like a fountain with an hundred spouts,
    Did run pure blood: and many lusty Romans
    Came smiling, and did bathe their hands in it:
    And these does she apply for warnings, and portents,
    And evils imminent; and on her knee
    Hath begg’d that I will stay at home to-day.

    DECIUS BRUTUS : This dream is all amiss interpreted;
    It was a vision fair and fortunate:
    Your statue spouting blood in many pipes,
    In which so many smiling Romans bathed,
    Signifies that from you great Rome shall suck
    Reviving blood, and that great men shall press
    For tinctures, stains, relics and cognizance.
    This by Calpurnia’s dream is signified.

    CAESAR : And this way have you well expounded it.

    DECIUS BRUTUS : I have, when you have heard what I can say:
    And know it now: the senate have concluded
    To give this day a crown to mighty Caesar.
    If you shall send them word you will not come,
    Their minds may change. Besides, it were a mock
    Apt to be render’d, for some one to say
    ‘Break up the senate till another time,
    When Caesar’s wife shall meet with better dreams.’
    If Caesar hide himself, shall they not whisper
    ‘Lo, Caesar is afraid’?
    Pardon me, Caesar; for my dear dear love
    To our proceeding bids me tell you this;
    And reason to my love is liable.”

    William Shakespeare, Julius Caesar, Act 2, Sc. II

  18. OS,
    That is just one more amazing story from that criminal, Scott Walker. I cannot believe that his restrictions on the cost of someone utilizing their First Amendment rights is constitutional. He is on a very short leash and sometime next year the people of Wisconsin will be removing him.

  19. @rafflaw

    “It is scary to think that Scalia is on the correct side of this issue! Disastrous bill and it should be vetoed. I am shocked that Levin would have voted for this piece of crap.”

    Instead of being “scared” about Scalia and “shocked” about Levin, you may wish to consider this an enlightenment moment, and wonder what other sorts of bullshit you have been led to believe.

  20. Kasich, Ohio’s joke of a Governor and great provider of Government Welfare to needy/greedy republicans … is trying to privatize the Ohio Turnpike … all those grasping little republican businessmen who wouldn’t be able to make it in any business without the help of a government handout, are falling all over themselves trying to form a line to get the first ladle full of Turnpike soup in their tin-bowl.

    (Sigh) … one more battle to fight

  21. Blouise,

    Heard today the Ohio legislature has a bill to drug-test welfare recepients. The leader in this, whose name I don’t remember, said something to the effect of “If they have nothing to hide. . . .” Did this sillyness go anywhere in florida?

  22. O.S. and Raff-

    As a life-long Wisconsinite, I would like to say that Scott Walker’s lawless acts will be struck down in the courts. However, in Wisconsin, as in many other states, the majority of the Supreme Court justices no longer interpret the State Constitution. They interpret and support the whims of the Republican Party. The last 3 Supreme Court justices elected in Wisconsin were all Republicans and all three faced charges of ethics violations. None were removed from office.

  23. Andy,

    That would be Senate Bill 59 and his name is Sen. Tim Schaffer out of teabagger land in central Ohio (Pickering, parts of Columbus, etc) … the compassionate Schaffer wants the applicant to pay for the drug test which could be as high as $35. Last time the republicans tried this the democrats responded with a bill proposal to test state lawmakers and statewide officeholders first. Schaffer, mealy mouthed coward that he is, said he’s reintroducing the bill this year “after hearing stories from constituents.” I guess his constituents down there have a real working knowledge of drugs … which suggests they should all be tested too.

    He also introduced the NRA sponsored legislation that allows for holders of a concealed carry license to carry their weapons in bars and restaurants. All law enforcement was against the bill but you know teabaggers and guns … it passed.

  24. Blouise-

    Scott Walker and the Republican controlled Assembly passed a law permitting the open and concealed carrying of guns in Wisconsin. Walker just announced that guns will not be permitted in the State Capitol building.

    In other words, “You peasants may have to duck for cover, but not me!”

  25. HenMan,

    Walker and Kasich are brothers in arms …

    Here’s what Walker has managed to do for your kids in Wisconsin: “The DPI says more than 41 percent of children in the state are eligible for free and reduced price school meals this school year. That’s 8 percent more than three years ago.”

  26. SwM,

    Yep … the C Street Chamber boys have left their bathroom stalls to start their ad campaign.. I saw the ad the other night.

    In the meantime, Brown is busy saving 300 jobs in Elyria from one of the Chamber’s biggest contributors … the Chinese government. The Chamber lads don’t talk about that for fear of angering their Asian masters.

    Brown has been building a war chest to fight off the Chamber onslaught which was predicted to start shortly after the Nov. elections.

    This is going to be a fun year! It’s going to be down in the mud dirty. Kinda like what football used to be before all the sissies took over with their rules to protect the “million dollar stars” from getting boo-boos.

  27. Mike Spindell and Mike-

    I want to commend you both for your excellent analysis of the current situation.

    Mike S.- I know you are familiar with the plot to carry out a coup against FDR and install a fascist dictator in 1933 that was prevented by Marine Corps General Smedley Butler. Today’s corporate fascists have considerably more influence over Congress and considerably more funds to buy them off. I hope we still have modern Smedley Butlers to prevent an overthrow today, although an overthrow may not be necessary any more. The sheep may elect their own executioners.

    Mike- You have accurately described the feeling of hopelessness I have been experiencing for nearly a year as I watched my state descend into lawlessness. A corrupt Governor and a majority of its lawmakers have passed laws which can only be described as direct attacks on women, minorities, students, seniors, the poor, the middle class, teachers, and union members. That pretty much leaves only the rich and the corporations unscathed- a clear indication of a bought and paid for government.

    Fortunately, the Democratic Senators and Assemblymen fought back- the Senators leaving the State to deprive the Republicans of a quorum and temporarily stop their rush to serve the Koch brothers and ALEC. Thousands of outraged Wisconsinites and UW students from all over the country descended on Madison to let the Republicans know that there was opposition to their dirty tactics. Two of the recalled Republican Senators have been ousted and replaced by Democrats. 300,000 of the 500,000 signatures needed to recall Scott Walker have been gathered in a few weeks time.

    The best sign of hope I see is the Occupy Wall Street movement. Every violent overreach by city Mayors and police is met by an increase in the number of demonstrators. I am heartened by the fact that the participants are mostly young people who have remained non-violent in the face of unjustified force and aggression by the police- police who have been militarized and armed to the teeth by the Federal Government. This militarization of urban police forces is clearly not for the purpose of fighting foreign terrorists, but for the purpose of controlling the American people and protecting corrupt governments at every level.

  28. raff,

    He is but he still voted for the Defense Bill … I sent an email

    Anyway … in 2006 Brown defeated two-term Republican incumbent Mike DeWine who was a popular politician and one of the good republicans, if you know what I mean. I liked DeWine. They were very similar except Brown was a liberal and DeWine a conservative.

    Mike DeWine is now AG in Ohio but, and this gets into our political infighting … his cousin Kevin, is the GOP chairman and neither of the DeWine’s support Kasich and both support Romney. Thus Romney’s quick trip into Ohio where he undercut Kasich’s chances on Issue 2.

    In other words, right now the GOP in Ohio is having its own problems internally so the Chamber steps in with their clumsy ad to hit at Brown who is a very good campaigner as his easy defeat of the popular DeWine in 2006 illustrated. The Chamber flubbed it first time out of the box … may they continue to do so.

    Obama and Brown get along quite well. 2012 is going to be a fun year here.

  29. “So in comes to this. The loss of the most basic right of citizens met not by applause but, even worse, a collective yawn.”

    **********************

    The better the constitution of a State is, the more do public affairs encroach on private in the minds of the citizens. Private affairs are even of much less importance, because the aggregate of the common happiness furnishes a greater proportion of that of each individual, so that there is less for him to seek in particular cares. In a well-ordered city every man flies to the assemblies: under a bad government no one cares to stir a step to get to them, because no one is interested in what happens there, because it is foreseen that the general will will not prevail, and lastly because domestic cares are all-absorbing. Good laws lead to the making of better ones; bad ones bring about worse. As soon as any man says of the affairs of the State What does it matter to me? the State may be given up for lost.

    ~Jean Jacques Rousseau, The Social Contract Or Principles of Political Right, Book III, Ch. XV (1762)

    I thought I’d read Professor Turley’s somber sentiments before. Great minds …, you see.

  30. Here is the applicable text of the proposed legislation with some emphasis supplied by me. i think Kenergy599 raises an interesting issue:

    SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

    (a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

    (b) Covered Persons- A covered person under this section is any person as follows:

    (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

    (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

    (c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

    (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

    (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

    (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

    (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

    (d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

    (e) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons’ for purposes of subsection (b)(2).

    SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.

    (a) Custody Pending Disposition Under Law of War-

    (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.

    (2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–

    (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

    (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

    (3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.

    (4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

    (b) Applicability to United States Citizens and Lawful Resident Aliens-

    (1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

    (2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

    (c) Implementation Procedures-

    (1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

    (2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:

    (A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

    (B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.

    (C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.

    (D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.

    (E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

    (d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

  31. HenMan,
    I agree we need some Smedley Butlers today. I also know you are aware that Prescott Bush was part of that plot. This Bush patriarch also was partner’s in a bank that sponsored Hitler’s rise along with the Dulles Bros. and this is the strain of belief I was referring to though the Bush Crime Family is only part of it. This story has weighed heavily on me all day and like OS I fear for my children and grandchildren.

    Mike,
    I share your angst.

    Gene,
    And Brutus is an honorable man.

    Anon,
    Offtimes gadflys keep discussions honest and so are valuable. Other times though they’re merely pretentious asses that overvalue their purported insight.

  32. Very interesting, mespo.

    In the words of Marcellus to Horatio, “Something is rotten in the state of Denmark.”

  33. Mike,

    There are no new stories, only new ways to tell them, and the Bard covered most of the bases. Another of his plays that has much relevance to today’s political situation is Corriolanus. I read an article today in the NYT about an upcoming modernized film production starring and directed by Ralph Fiennes. If you’re not of a mind to read the play, the film looks quite promising. http://movies.nytimes.com/2011/12/02/movies/ralph-fiennes-and-vanessa-redgrave-in-coriolanus-review.html?src=dayp

  34. Kenergy & Mespo,
    I really hope your interpretations and my reading excludes American cities,ens and legally resident aliens. However, indefinite detention of anyone sans a trial affording them the right of a defense is noxious to me.

  35. Mike/mespo/kenergy,

    The root of the pestilence eroding our civil and human rights remains. This kind of situation will only keep occurring until that vile root is removed from the soil of American jurisprudence. It’s not enough to defeat bills like this one. We must make it clear to politicians that the overreaching mistake of the PATRIOT Act must be corrected. The effort to combat terrorism does not require sacrificing our rights. It never has and it never will.

  36. Kenergy599 1, December 2, 2011 at 11:47 pm

    Section 1032 (b) 1 says it doesn’t apply to US citzens…where do you folks think it applies to us?
    ==================
    Before any bill becomes law by the signature of the President, while it is in legislation mode it goes through many morphs. Be sure to read the proper, latest version.

    The Senators have declared publicly that they are just making a law that “already is the law”.

    Wrong!

    What they are doing is to condition the public in preparation for what is coming.

    Preparing for what is obvious to those who are reading the signs.

  37. When a reporter attacks a bill, they are obligated to refer to section numbers and quote the offensive provision. I read the contents and sacanned the entire entire bill, and there is nothing new since post-911 legislation. There is certainly nothing authorizing the killing Obama did, it went outside this legislation. Believe me there is plenty to be worried about, but nothing new. Politicians find reasons to harass and try to impeach each other because they want to eliminate the competition. What should concern us is that this could be deliberate disinformation to keep our attention off the real issues – the killing of 100s of thousand oof innocents overseas, and the fat military budget that continues to bankrupt the country. Sure, let protest the two that were killed. But dont waste our time tying it wrongly to new legislation without even giving references to the text.

  38. Repeal the Patriot Act and the Authorization of Forces. Seat grand juries to probe matters of war crimes. And overturn Citizens United.

    This is the pathway out of the darkness, and all of it is still not only possible, but absolutely required for America to survive.

    I am astonished that no U.S. attorney has acted. Go to Vermont to understand why they will arrest the former heads of the previous criminal enterprise posing as a presidency on sight.

    The time has come to act.

  39. http://motherjones.com/kevin-drum/2011/12/war-endless-war

    “We must make it clear to politicians that the overreaching mistake of the PATRIOT Act must be corrected. The effort to combat terrorism does not require sacrificing our rights. It never has and it never will.” -Gene H.

    Of course Gene H. is correct about the Patriot Act… and, yet, it’s still with us and stronger than ever, it would seem…

    Senator Wyden warned us about some of its abuses. He said, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” ” Furthermore, since its passage, the Department of Justice’s Office of the Inspector General has repeatedly found widespread blatant abuse of the statute.” (ACLU, The Patriot Act, 10 Years Later)

    After hearing Wyden’s fairly recent comments, I naively expected that there would be some sort of public outcry — I thought that Americans would demand answers. Nope. Relative silence was the response. No hue and cry. Nothing. Better to feel safe and secure. If one isn’t personally feeling the pinch, then no real need to act… No leaks… Not a peep… To date, no one is talking… and few are even bothering to ask…

    We need a Watergate-like moment, I suppose. Without it, it’ll simply be business as usual. One thing that I’ve learned over the past few years is that Americans, in general, have been well-trained to turn a blind eye to abuse, if doing otherwise would upset one’s nice, comfortable life.

    Daniel Ellsberg struggled with this. In his documentary, he relates that he’s still haunted by thoughts about how many lives might have been saved, if he had done something earlier. (As many know, he waited years before acting.) He said that there were so many people who knew… and did nothing…

    Evil truly does flourish, when good men do nothing. We’ve been less-than- able guardians of this little republic of ours…and, as such, we shouldn’t be surprised at where we are today.

  40. The arc has reached this frontier:

    http://www.outsidethebeltway.com/alabama-arrests-another-foreign-auto-executive/

    One nugget here is that Alabama now has check points set up simply to check your papers. They get the easy ones first: those who drive. Woe betide you left your license on the dresser. Never mind you can be tracked nine ways from Sunday now IN ADDITION TO your driver’s license.

    As governmental intrusion and intimidation grows more rank, it steals our power to act to remove the laws on which these sadists depend.

    Time is of the essence. Seat grand juries today.

  41. One friend of mine with whom I shared the above link replied with the following:

    “Hände hoch, bitte deine Papiere! Ihren Namen, bist du ein Jude?”

    Those who forget the past are doomed to repeat it. If you aren’t scared, you simply do not understand the situation.

  42. Thank you Mespo and Dredd for your input.
    James in LA and Rafflaw…I wholeheartedly agree.

    Note to Jonathon: the things I like most about this website is your legal
    expertise, and the number of intelligent people commenting here.

  43. Now they can kidnap or kill you whenever they want.

    Of course, they always could–legal niceties aside–but now they can brag about it.

  44. Absolutely incredible and outrageous. Is this America or Iran. Did we not have those three kids held for two year in Iran when they were merely hiking. Our Congressman are a bunch of hypocrites and are ill informed about constitutional safeguards that distinguish our country from other nations. Just a sad day in our country.

  45. Absolutely incredible and outrageous. Is this America or Iran. Did we not have those three kids held for two year in Iran when they were merely hiking. Our Congressman are a bunch of hypocrites and are ill informed about constitutional safeguards that distinguish our country from other nations. Just a sad day in our country.

  46. “James in LA and Rafflaw…I wholeheartedly agree.

    Note to Jonathon: the things I like most about this website is your legal
    expertise, and the number of intelligent people commenting here.”

    Thank you. There is much consensus here.

    So, do forgive my presumptuousness, but I’m just going to come out with it: more than a few lawyers read this blog, of all stripes, at all levels. For years, as we have seen the current administration repeat the same dreadful mistakes, there has been no paucity of commentary on the cause and effect. This or a future administration is almost certain to fail, and miserably so.

    I find it difficult to fathom that such Reverend Barristry has not yet banded together to meet this assault directly, and not with just any civil proceeding. It is hard to enroll myself in the notion that such motivated individuals as seasoned jurists are incapable of independently, and with all due Patriotism, crafting and implementing the legal corrections we absolutely have to have.

    So I am laying down the gauntlet. As a person of Service and some information-related talents, I would join any real effort today with everything I could spare.

  47. Mr. Fromm,
    I do not think the three alleged hikers were actual hikers. Who in their right mind would hike in Iraq? I think they were there on some sort of mission and got caught. No evidence, just my gut reaction. That being said, we still have a problem here and it is just getting worse.

  48. rafflaw:

    “I am shocked that Levin would have voted for this piece of crap.”

    Why? He is as anti-individual rights as most of them. McCain is no better than Herman Goering in my opinion and I have thought that for a good long time. He is definitely a tyrant.

    I dont know why this should shock any liberal progressive, you have believed in a living evolving constitution, not one devoted to the single concept of individual rights.

    The first time a progressive thought it was a good idea to take bread from one man and give to another was the beginning of the end. When a man has no right in the sweat of his brow and a mans work is not respected, why do you think his life would be respected?

    Economic and political liberty are conjoined twins.

    Progressives dont believe in economic liberty and apparently neither party believes in political liberty.

  49. Mespo:

    “Again, every malefactor, by attacking social rights, becomes on forfeit a rebel and a traitor to his country; by violating its laws be ceases to be a member of it; he even makes war upon it. In such a case the preservation of the State is inconsistent with his own, and one or the other must perish; in putting the guilty to death, we slay not so much the citizen as an enemy. The trial and the judgment are the proofs that he has broken the social treaty, and is in consequence no longer a member of the State. Since, then, he has recognised himself to be such by living there, he must be removed by exile as a violator of the compact, or by death as a public enemy; for such an enemy is not a moral person, but merely a man; and in such a case the right of war is to kill the vanquished.”

    JJ Rousseau

    The Social Contract Book II section V

    He also says the above so I am not so sure Rousseau is a good one to quote on this subject.

    Generally Rousseau is not a supporter of individual rights, I think you might do better quoting Locke.

    Because Rousseau also says this in Section V:

    “Furthermore, the citizen is no longer the judge of the dangers to which the law-desires him to expose himself; and when the prince says to him: “It is expedient for the State that you should die,” he ought to die, because it is only on that condition that he has been living in security up to the present, and because his life is no longer a mere bounty of nature, but a gift made conditionally by the State.”

    Which is not all that different from what most progressives believe.

    Rousseau is not talking out of both sides of his mouth. So I submit this bill is perfectly in keeping with the general philosophical atmosphere in this nation at the current time which is more in keeping with Rousseau than Locke or Jefferson. And that atmosphere is anti-individual liberty.

  50. Bron, that is a bunch of crap about progressives not believing in personal liberty. If anyone believes in economic liberty it is progressives. The Right does not value labor, only capital.

  51. rafflaw:

    no, what people like me value is human beings. what the left values is the state. And this law is perfectly compatible in every way with collectivism.

    we value the right of a laborer to keep the money he earned from the sweat of his brow, which no other man has a right to.

    that you think it crap that a man has a right to his own life and thus the sweat on his brow is is very interesting.

  52. Bron,
    The only value that you place on labor is how much money that you can make off of the efforts of laborers. A man does have the right to his own life, but not to prevent laborers from making a living wage.

  53. Seven Senators voted “Nay”: Coburn, Harkin, Lee, Merkley, Paul, Sanders, Wyden. It seems the least we can do is email a “Thank you” to the only ones who seem to “get it” and care. Wyden and Merkley are from Oregon.

  54. rafflaw:

    if a job is worth $10/hour how can you pay $20? Where will the money come from?

    You do understand that when you hire a contractor he gives you a price and he builds an addition for you. Do you tell the contractor you want to pay $20/hour for the laborer who is only worth $10/hour in the market place? A living wage is all well and good but if you dont get a job you cannot pay anyone. Jobs do not grow on trees.

    The best thing for labor is a healthy economy so they sell their skills for the highest possible amount. When times were good around here you could get a job at McDonalds for $10/hour which was almost 150% of what minimum wage was.

    But I do tend to agree with you, why should a CEO make $15 million/year when they are laying people off. But then maybe we as a country put to much stock in public companies. If you own stock you are guilty of preventing labor from receiving a “living” wage. Since you want to maximize your return on your investment.

    So I say, put your money where your ideals are and divest your retirement account and put it into realestate or gold so you wont be guilty of supporting companies which do not pay a “living” wage.

    In fact I did that, I got tired of CEO fat cats taking millions out of the companies I owned and not doing much of anything for the stock price or for their workers. It doesnt take a genius to fire people, I could do that myself. And what about Michael Eisner [formerly Disney chief]? Gets paid millions of dollars for re-releasing Pinnochio? WTF? They must have had some real dim bulbs at that company.

  55. Obama Should Veto Empire Over Republic
    Posted: 12/ 3/11

    by Coleen Rowley (Former FBI Special Agent)

    http://www.huffingtonpost.com/coleen-rowley/ndaa-military-detainment_b_1126781.html

    Excerpt:

    The NDAA is deliberately confusing for political purposes but much is at stake. Obama’s determination as to whether or not he will veto the problematic 2012 war funding bill will determine how Benjamin Franklin’s glib response to the woman waiting outside the Constitutional Convention is ultimately answered. Franklin and other founding fathers had created “a Republic, Madam, if you can keep it”. But a lawless Military Empire could now await where U.S. “emergency war powers” trump the Constitution, where the Commander in Chief becomes king for a term(s), the military enters into police state actions in violation of 130 years of Posse Comitatus law, and the Constitution becomes as quaint as the Geneva Conventions were for Alberto Gonzalez and the Bush Administration.

    Corrupted, compliant politicians have already allowed their fears to get the better of them by going along with pre-emptive war in violation of the Nuremberg Principles and international law and torturing in violation of the Geneva Conventions and the Convention against Torture. So why should they also not go for detaining American citizens without constitutional rights or trial?

    Tell your congresspersons and senators who passed the NDAA they should be ashamed and tell the president (also via Senator Mark Udall’s petition) he needs to keep his promise to veto this Act in order to save our Republic. (end of excerpt)

  56. Bron,
    The only way you are going to have a healthy economy is to create demand for products or services. Without a living wage you will not get the demand that is needed.

  57. let’s fantasize for a sec and write a script for a twilight zone episode….

    Right after the new law goes into effect, Carl Levin and John McCain are arrested and held indefinitely for creating this law…..

    good for a few seconds of relief, now back to our regular programming….

  58. rafflaw:

    that is consumption. production is first required, that is why I think you must have a favorable environment for business to produce.

    You cannot consume without first producing.

  59. Bron, you have it bass ackward. There will be no production unless people have money to spend. Production does not start until there is demand. No demand, no production. No money or jobs and no demand. Poor low paying jobs and demand is minimal when people are barely scraping by.

    The genius of the New Deal programs such as CCC and WPA were to put people to work and that increased the money supply into the hands of the working class. That increased demand for goods which increased production. The Republicans fought it of course, even to the point where Prescott Bush and his cronies tried to set up a coup to overthrow the government.

  60. Bron, you clearly either did not take Economics 101, or if you did, you did not understand the content.

    The rich do not create wealth. They take it. The money comes from shaking the money tree. The crash of 1929 was brought on by the same kind of greed and the money being sucked into such a small focus it might as well have been the singularity of a black hole.

    Shake the money tree, aka the rich 1%. There is no reason Warren Buffet should pay a lower tax rate than his office staff. Mitt Romney made a fortune by firing employees when it was most financially beneficial to him personally.

  61. OS:

    OK, we shake the money tree of the 1% how many jobs does that create and at what cost? Also how long does the job creation continue?

  62. Surprise! “WASHINGTON (AP) — The White House on Wednesday abandoned its threat that President Barack Obama would veto a defense bill over provisions on how to handle suspected terrorists as Congress raced to finish the legislation.

    Press secretary Jay Carney said last-minute changes that Obama and his national security team sought produced legislation that “does not challenge the president’s ability to collect intelligence, incapacitate dangerous terrorists and protect the American people.”

    Based on the modifications, “the president’s senior advisers will not recommend a veto,” the White House said…” No way would I ever believe Obama was going to go back on his word!

  63. compared to G Greenwald, your posts are light on facts and references
    no link pdf of bill; no link explaining the complex history of bill in house and senate; no link to explanation why sections 1021 1022 key sections
    in short, you are just clogging up the blogsphere with a second rate blog

  64. We might have some states/local governments that will challenge the federal government to hand over citizens. I am proud to say our two senators from Oregon voted against it, but our district rep voted for it.

  65. You know, I see this crap (the bill itself) and I think: GOOD! Let them live in the country I have been living in since a single circuit court judge decided to become all three branches of the entire government for all 50 states and the feds as well, and to rule from a star chamber without bothering with notice. Good, let Americans find out (by reading things actually written down) what is being done to them. Good. By the way, I didn’t just now START to think this cynical and bitter thought: I started at 10 a.m. on 9/11/2012 (without actually thinking “good,” but while thinking, “now they’re gonna find out” and I was right) — and then I went to the store, purchased 6 big bags of rice and 24 bags of dried beans and lentils, 12 boxes of powdered skim milk and first aid supplies, and delivered them to six families I knew in the area who had children, because I didn’t know what would happen later in the day.

  66. vous serez alors honte ou embarrasse avec le regard disgracieux et laids au milieu des autres.c’est l’authenticite avec des idees novatrices qui rend les chaussures de cette marque populaire .la marche est un excellent exercice, trop ! il est plus facile sur vos articulations que la course et le jogging, mais vous donne quand meme une bonne seance d’entrainement.

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