Indefinite Detention of Citizens: A Response To Senator Carl Levin

Yesterday, my column “10 Reasons The United States Is No Longer The Land Of The Free” ran in the Sunday Washington Post. I have been heartened by response to the column. However, a few commenters continue to suggest that the National Defense Authorization Act (NDAA) does not allow for the indefinite detention of citizens. This claim is being advanced by Senator Carl Levin (D., Mich.) in emails and fax messages to voters. I wanted to respond to Senator Levin’s points which are detached from language of the law and the clear intent of the majority of Senators. I would also like to address those who have stated that our liberties are not at risk when such powers will not affect most Americans.

I have previously explained why the claim by Sen. Levin is unfounded, as have others like the ACLU and commentators like Glenn Greenwald. The White House itself offered the spin to supporters in Congress, explaining why the President reneged on his pledge to veto the law. The White House is saying that changes to the law made it unnecessary to veto the legislation. That spin is facially ridiculous. The changes were the inclusion of some meaningless rhetoric after key amendments protecting citizens were defeated. 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. The exemption for American citizens from the mandatory detention requirement (section 1032) is the screening language for the real section, 1031, which offers no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial. Section 1031 only contains a meaningless provision stating “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

First, this provision was added after an amendment to exempt citizens was defeated by the Senate — legislative history that any court is likely to note in the interpretation of its meaning.

Second, the fact that the Senate put a clear exemption in the mandatory detention provision for citizens but opted not to simply include the same provision in the discretionary detention provision reinforces this meaning.

Third, after the exemption for citizens was defeated overwhelmingly, the same Senators who voted to deny any exemption proceeded to vote for this language — clearly indicating that it did not offer such protection for citizens.

Fourth, Levin and others are seeking to deny the authority that the President just acknowledged in his signing statement. Obama stated “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He does not deny that he has such authority . . . only that he does not intend to use it.

Fifth, Levin admitted on the floor that it was the White House that insisted on eliminating the exemption for citizens — affirming that without such an exemption, citizens would be subject to such detention. In an exchange with Senator Udall, Levin stated:

Is the Senator familiar with the fact that it was the administration which asked us to remove the very language which we had in the bill which passed the committee, and that we removed it at the request of the administration that this determination would not apply to U.S. citizens and lawful residents? Is the Senator familiar with the fact that it was the administration which asked us to remove the very language, the absence of which is now objected to by the Senator from Illinois?

Sixth, many of the members at the time of passage voiced their understanding that the provision authorized the indefinite detention of citizens – including those who wanted such a power codified and those who opposed the power. For example, At least Senator Lindsey Graham was honest when he said on the Senate floor that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Seventh, the language that was ultimately put into the bill was standard cover language for Senators who knew that they would be criticized for voting for the law. Indeed, when Levin referred to the language, he insisted that it would merely permit what is already permitted by law “whatever it may be.” Of course, the White House has claimed the right to kill citizens on the president’s sole authority. The indefinite detention of citizens would seem the lesser included in such a greater. Moreover, the Senators refused to change the existing law by putting in an exemption for citizens. It is also worth noting that the White House has successfully opposed the right of citizens to present national security powers to federal courts for independent review. What is the “law” is often only the assertion of power by the President – unchecked by judicial review.

Levin has been hammered by civil libertarians and liberals over his role in passing this harmful law. His official Senate site now features a statement at the top. One of his financial supporters (who told me that he had declared that he will not to support Levin in the future due to the bill) sent me the following email from Levin’s office:

“The provisions on detention of terror suspects in the bill got more attention than all these other important priorities. The criticism of these provisions has usually been wildly inaccurate; if the bill did what some of its critics claim, I would have led the opposition. . . . It does not prohibit civilian trials for terror suspects. It does not strip the FBI and other civilian law enforcement agencies of their authority. It does not allow the military to make arrests on U.S. soil. It does not enact new authority to hold U.S. citizens without trial or charge. It does not provide for indefinite detention of citizens without access to civilian courts.”

Note the use of new authority. This is authority that has been claimed as being part of the President’s inherent authority — just as he claims the right to kill citizens. However, this law codifies new detention powers and the Senate expressly chose not to exempt citizens — and the President himself acknowledged the ability to indefinitely detain citizens in his pledge not to use it. Moreover, it was the duty of Levin and others to fight the passage of this law in the absence of an exemption, including fighting to use every power available from a filibuster to demanding a president veto. Instead, they took the political convenient approach and sought to excuse their act of constitutional nonfeasance behind this meaningless language.

I am hardly shocked that senators are not answering the criticism over this provision by being open about their failure to protect citizens. However, I continue to be amazed by comments on the Washington Post and this blog from citizens that we are not really losing any rights because most citizens are unlikely to be subject to these powers. It is disgraceful argument that only “those” people will be denied rights so I must remain free. Of course, since these are secret powers, you are not likely to know if you have been subject to surveillance or some other measures. More importantly, something is not a right if it is discretionary with your government to allow or to take away. By the time you find yourself denied of the right, it is too late to do anything about it. It is the same amoral logic described by pastor Martin Niemöller:

First they came for the communists,
and I didn’t speak out because I wasn’t a communist.

Then they came for the trade unionists,
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for the Jews,
and I didn’t speak out because I wasn’t a Jew.

Then they came for the Catholics,
and I didn’t speak out because I was Protestant.

Then they came for me
and there was no one left to speak out for me.

Thankfully are we not facing the type of horror faced by Niemöller, but the logic is the same: I do not need to object unless the government denies me a right.

The government always embraces abusive power by targeting the least popular among us. The test of patriotism is to fight for the values that define us. While people appear ready to protest over taxes against “big government,” some of the people often seem to remain silent in the face of the very abuses that the Framers sought to combat from indefinite detention to warrantless searches to assassination. The play on security as a rationale to limit freedom is nothing new. As Benjamin Franklin observed, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Jonathan Turley

234 thoughts on “Indefinite Detention of Citizens: A Response To Senator Carl Levin

  1. The quote about how they first came for the communists etc was by Rheinhold Niehbur. Not Martin Niehmoeller the Wright City, Missourir guy. Some kid put that in here on your blog yesterday from the smart guys and gals over at some grade school cult.
    But these articles by Jonathan are great. The best way to zero in on a Levin kind of a guy is ask him why he cant get bifocals or get those dumb glasses off of his face in some other way like eye surgery or something. He is a real know it all sumbitch on television. But guys who purport to take up for the Constitution and then subvert it are Goerring muppets. Jonathan if you want a spell checker its not me but if you want a fact checker then give me a call.

    Levin is close historically to President von Hindenberg in Germany in 1933. He falls for the threats and he imposes martial law to repel them. Georgie Bush did the same on the Twin Tower 9ll thing. Now they want to usher in a Hitler to go forward with the program–they already have the laws or dismantling of laws, in place–and a dumb populace ready to take aim at Muslims, gypsies, jews, liberals, in what ever order.

  2. Umm, you might want to take another look at this post as you copy and pasted the whole part before this: “sent me the following email sent to financial backers by Levin’s office:”, right after it. Hard to describe effectively but there’s a huge duplication of the first part of the post thrown in the middle.

    It’s quite confusing to read, to say the least.

  3. As a person that is very familiar with Carl (US-Senator-MI) and Sandy (US-Rep-MI)…I am aghast that Carl would support such a facially UNCONSTITUTIONAL ACT…..I suppose Obama needed a person that could take the heat and still win a seat…Provided the Democrats turn out….

  4. Excellent article Jonathan (after I figured out how it was supposed to read :-) Keep fighting this fight against the ignorant, naive’ and the outright power hungry arrogant jackasses who continue to whittle away at our rights. GWB’s quote about the constitution being “just a god damned piece of paper” was very telling about where this has all been going.

  5. Magna carta, 1215

    (38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

    (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

    (40) To no one will we sell, to no one deny or delay right or justice.

    Any questions?

  6. Write your senators and representative explaining their error and asking them to remedy the situation with new legislation. Cite evidence from the actual bill. After developing your arguments by writing the letters, send the letters. After that, open the bill on your computer on opencongress.com. print it off (just a few sections, copy and paste them into word) if your computer is slow. find the section which states citizens are NOT REQUIRED to be indefinitely detained. Phone your senator. ask whomever picks up the phone why he supports indefinite detention without trial for american citizens. when they say you are wrong, ask them to view the bill and if they don’t have a copy handy, ask them to go to opencongress.com, h.r. 1540, section ( not sure if its 1021, 1031, or 1032- my computer keeps crashing) and ask them to view where it says “does not require citizens.”

    If they balk, tell thim that this is a very important matter and that as your senator you and his office must come to a conclusion because you both cannot be correct. Tell them that if you are wrong, then they need to show you the evidence, but if they are wrong, the senator MUST correct this grievous error. Tell them the evidence is in the bill that he voted for, and tell the aid all you are asking is for him or her to just view the bill and the certain section. it is important.

    show them the requirement section. show them the covered persons section (1021 on my copy, i think it changed on different versions so be sure you have the right sections). when they point to american cotizens, tell them then why clarify with the rquirement? why does obama not deny the authority but the use, and in his administration, what about the next? Ask them to what purpose, what was the reasoning why the senator did not vote to support the stronger language amendment that would have explicitly made it not apply to citizens. This is important! Tell them you would like your senator to be explicit when it comes to your civil liberties. Tell them this is not representing your state well, not helping his constituents. If the senator does not correct this, you will campaign against him in the next election and make sure everyone knows his record.

    Then bring up SOPA AND PIPA. There are 40 senators sponsoring pipa. if he is one, really dig in there. What is he trying to do? eliminate freedom?

    Tell them you are following these events and you expect changes to be made.

    Then, call your other senator.

    Your representative.

    Track their PIPA vote and repeat the process next week. Tell them you haven’t seen any actions to correct their mistakes on NDAA. That u are paying attention….

  7. http://www.truthdig.com/report/item/why_im_suing_barack_obama_20120116/

    Why I’m Suing Barack Obama

    Posted on Jan 16, 2012

    By Chris Hedges

    Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint Friday in the Southern U.S. District Court in New York City on my behalf as a plaintiff against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31.

    The act authorizes the military in Title X, Subtitle D, entitled “Counter-Terrorism,” for the first time in more than 200 years, to carry out domestic policing. With this bill, which will take effect March 3, the military can indefinitely detain without trial any U.S. citizen deemed to be a terrorist or an accessory to terrorism. And suspects can be shipped by the military to our offshore penal colony in Guantanamo Bay and kept there until “the end of hostilities.” It is a catastrophic blow to civil liberties.

    To read Chris Hedges’ legal filing aimed at overturning a new law that would allow the indefinite detention of U.S. citizens deemed terrorism suspects, click here. To read the law itself, click here.

    I spent many years in countries where the military had the power to arrest and detain citizens without charge. I have been in some of these jails. I have friends and colleagues who have “disappeared” into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism. and the article continues…

  8. From Smom’s linked article: “Or take the issue of the banks. Liberals have derided him as a captive of Wall Street, of being railroaded by Larry Summers and Tim Geithner into a too-passive response to the recklessness of the major U.S. banks. But it’s worth recalling that at the start of 2009, any responsible president’s priority would have been stabilization of the financial system, not the exacting of revenge. Obama was not elected, despite liberal fantasies, to be a left-wing crusader.”

    That’s funny, Andrew. I don’t think holding corporate criminals responsible for their crimes constitutes revenge. It constitutes justice. Just like holding domestic war criminals responsible for their crimes is justice. You claimed at the end of your article to be “biased toward the facts”, but your interpretation of facts depends upon faulty definitions apparently. Justice isn’t revenge. It’s equity and equal application of the Rule of Law.

  9. anonnurse,
    a very interesting lawsuit. I don’t know how far they will get, but I hope it at least calls attention to the issue.,
    The reason I agree with Prof. Turley’s take on Sen. Levin is that if he and others did not agree with the provision that he alleges the White House wanted in the act, why didn’t he filibuster it? If McConnell and his cronies can filibuster everything under the sun, why can’t Levin or any other self-proclaimed progressive Senator? I realize that they may not have had the 40 votes to continue the filibuster,but without even trying it shows their true hand.

  10. If one were detained anywhere in the world, one could subpeona the Right Hon. Karl Levin as a witness. I would ask the court to detain him for every day that I was detained without due process of law.

    People of Michigan: “Hotsie Tootsie, I smell a Nazi”– 3Stooges.
    People of Michigan: Vote him Out, or in his own language Auschfarht.

  11. On the big picture of todays topics my clientele wants to know what today is–what Holiday fall on today and what person might be a topic for today?

  12. Well stated. I’ve never understood people who have said, “If you’re doing nothing wrong, you have nothing to worry about.” They don’t seem to realize that the definition of “wrong” is subjective.

    I also don’t understand the “better safe than sorry” argument. I’ve had words with little old ladies in airports who fly once a decade claiming the illegal searches and body scans are for the greater good. I travel a couple times per month, and I’m tired of being groped by someone I could file charges against if they did it outside of a TSA scan because I refuse to go through the full body scanner.

    It’s unfortunate that most people tend to think there’s an issue with a policy only when it directly negatively affects them. That’s how we’ve slowly lost our Constitutional rights — while the government claims we’re still a superior country grounded in the Constitution in order to continue to disillusion citizens that they maintain those rights. The decade long slow burn of the Constitution eased too many people into accepting the stripping of its rights and the abandonment of the judicial branch’s checks and balance.

  13. Swarthmore Mom,
    Levin has a lot of company in the Senate that voted for this bill. It is time to put a stop to the military industrial complex and it won’t be easy.

  14. “It’s unfortunate that most people tend to think there’s an issue with a policy only when it directly negatively affects them. That’s how we’ve slowly lost our Constitutional rights — while the government claims we’re still a superior country grounded in the Constitution in order to continue to disillusion citizens that they maintain those rights. The decade long slow burn of the Constitution eased too many people into accepting the stripping of its rights and the abandonment of the judicial branch’s checks and balance.” -DS

    I agree.

  15. rafflaw, I agree, but don’t see it happening soon. John Bolton’s candidate, Romney, will only make a bad situation far worse.

  16. A quick check shows Martin Neimoller, of Lippstadt, Germany, did indeed make that statement.

    Also there is no duplication. The information is presented from different viewpoints. The first part is Turley’s observation. The “middle” part is Turley quoting from Levine’s letter to financial supporters. Notice the indentation. That indicates a block quote.

  17. Professor Turley clearly gets it.

    What I have been saying for a long time is based on a belief that the last two presidents, at the very least, are puppets of higher powers.

    The narrative Professor Turley lays out has the pattern in it that confirms it for me (among many other indicators).

    It is as if groundwork has been (and still is being) laid down by the Bush II, and now the Obama administrations to slowly set the stage.

    The powers behind these two fronts are looking ahead to something, some time, or some reason they foresee which requires these draconian measures.

    They are visionaries.

    But they are evil visionaries non-the-less.

  18. Bravo. Book mark it.

    This explication refutes those — like the TPM ‘brains” — who argued with my pale reflection of the logic of this post — and would twist, minimize, shade, and sell out basic principles for short term political cover for the actions of their man.

    Levin’s explanation to his supporters and fat cats, exonerating, minimizing, and falsely shaping his despicable involvement in this legislation, virtually defines the words “disingenuous”and/or “disrespectful”, and fights fact with doublethink and koolaid.

    And shame, shame on the troll in the original comment thread below (on the WAPO story) who has personally guaranteed us of the fact that noone not actually involved in terrorism has ever been abused, or therefore need fear being abused. Nor, one supposes, is the intimidation, threat, and fear of potential abuse of any consequence.

    Obama? Argue if you will over whether he should have your vote or not. But don’t embarrass yourself trying to deny his complicity in this extra-Constitutional foray.

  19. Bruce W

    Yeah, this is one of those times where someone points out a large error in a post, it gets fixed, and all those who view it post-fix think the person(s) who pointed it out are out to lunch. I may be OTL sometimes, but not for this reason! ;-)

  20. @shano Someone told me not to rely on the Magna Carta unless you are a Lord so-and-so. And certainly not if you are a woman.

  21. If Hedges has a chance anywhere it would be the Southern District of New York especially with Judge Rakoff.

  22. Dr. Turley, Thanks for fighting for us. I hope you and others can help reverse this. I am pasting the link to the discussion on the floor that you referred to:

  23. On the Blog’s banner there is a link for Corrections … those new to the blog will eventually see it has its uses.

  24. If Hedges has a chance anywhere it would be the Southern District of New York especially with Judge Rakoff. -Swarthmore mom

    Swarthmore mom, I do like Judge Rakoff…

    (Catullus, As rafflaw indicated, the main point is to draw attention, I would guess.)

  25. Suggested next steps? The situation is sadly ironic. By attempting to defend our democracy and way of living he has become an enemy of it. Almost borders on being a traitor and perhaps being subject to the legislation he so hardily embraced. Now that’s ironic.

  26. I applaud the donor for telling Levin to get stuffed! That is what every donor needs to do. This is what every citizen needs to do. If your candidate supported/signed this law then do NOT give them your time, your money, your words of support, or your vote–nothing except a fax telling them you withdraw consent and they may expect your public condemnation of their actions.

    Do not give up your power to criminals. Join with your fellow citizens any way you can to peacefully restore the rule of law. That is where our time, our money, our words should go. Our vote can go to a candidate who will not destroy the rule of law and betray our rights. I am grateful for Hedges lawsuit. We should try many tactics and see what happens.

    There is only one thing not to do and that is to keep supporting people who allow torture, murder and indefinite detention. Doing that guarantees each of these horrific actions will continue.

    I was very glad JT addressed the attitude of, well I’m law abiding so why should I care what happens to others? That one just blew me away. More than half our detainees in Gitmo have been cleared for release since the Bush administration. They are innocent. They are law abiding and yet they are in prison with no end in sight. I do not know how to understand failing to care about other people in this way. We need to really start caring about others’ lives. The concern for justice is based on our concern for other human beings. There is no better way to honor the legacy of MLK than to care for the lives of others and to go to the wall to protect them.

  27. JT’s 10 reasons really scared Levin. He wouldn’t be trying to pass out the BS if he wasn’t worried. So speaking out and cutting off funds apparently does effect politicians, profoundly. That’s good news and points out which way to go.

  28. S.M.,

    Why is imprisoning the innocent something you will tolerate under Obama? What about right now? Does that matter to you, because if it does you should protest the current harm.

    I do not see any rational reason for trusting what Obama says. He has lied repeatedly. The best prediction of future behavior is current behavior. Obama is imprisoning the innocent right now. This needs to concern you so and you should speak out against it.

    If it is offensive to have the innocent imprisoned under Romney, it is also offensive to have the innocent imprisoned under Obama. This has always been an inconsistency with Obama supporters. You are upset that a future president will do what Obama is doing right now but you are not upset about the here and now. I don’t understand that.

  29. Jill, I have never been a strong Obama supporter. You have no idea what I say or do apart from this blog. I don’t trust politicians for the most part, but I am voting for Obama not Romney or Rocky.

  30. Jill, Why do you consistently tell me what I should do? I don’t care if you support Buddy, Rocky, Ronny, Romney or whomever.

  31. I know you are voting for Obama but I cannot help but notice you refuse to condemn the indefinite detention of other human beings on this blog when done by Obama. You can condemn the future indefinite detention under a possible Republican president but will not condemn it now. That shows me that your position on indefinite detention is not consistent, otherwise, you would speak up, on this blog against indefinite detention. It really is that simple.

  32. Prof. Turley’s analysis and conclusions are absolutely correct. I have spent an inordinate amount of time over the past four weeks working on a post on this topic, most of which has been mooted by Prof. Turley’s posts yesterday and today. The legislation is insidious and, in my view at least, unconstitutional.

    As troubling as the substance of the law may be, the explanations provided by legislators have been erroneous at best and, in many cases, dishonest. I protested the legislation in emails to both of my senators and the responses were disingenuous. Both Sen. Nelson and Sen. Rubio insisted that the law fully protects the constitutional rights of U.S. citizens and makes no changes in existing law in that regard. For reasons Prof. Turley has carefully articulated, those conclusions are absurd.

    The only remedy is repeal, unless or until the courts throw out the law. I doubt that the case filed today by Chris Hedges will produce a judicial determination since I can’t imagine how Mr. Hedges would have standing.

    And for those who claim that the innocent have nothing to fear from tyrannical government, you are either delusional or woefully lacking in your knowledge of history.

  33. “makes no changes in existing law”, these good patriots assure us, eh Mike? Pretty sneaky isn’t it? Just codifies — how innocent — what is existing, constitutionally questionable practice. Questionable, probably, only because of the current makeup of the high court.

    I think we’re right to find something sticks to high heaven here.

  34. Mike,
    I agree that I doubt Hedges has standing to sue. I don’t think there is a snowball’s chance in hell to get it overturned in the near term, but I can still hope.

  35. The right of Uncle Sam to indefinitely detain citizens was already accomplished under Bush’s signing of the Military Commissins Act. Obama just more clearly codified it, scoundrel that he is:

  36. Puzzling can you provide a link to the story…..I want to read that one…There are a couple of folks on here in which I intentionally ignore their posts….In my opinion the post are worse than Dreck….that has all the qualities of a Zhlub….

  37. It is almost as though members of Congress are suffering from some sort of mass hysteria. Virtually all of the anti-terrorism legislation which has emerged since 9/11 has constitutional flaws. Moreover, Congress has made certain that all of the discretionary authority it has created places complete responsibility on the executive branch. Legislators are twice cowards: they erode the Constitution out of fear of a stateless criminal syndicate and they absolve themselves of responsibility for the result by leaving the decisions to the President.

  38. It is my understanding that Levin is to retire at the end of his term….after all he will be nearly 80….So far Sandy does not want this seat………Sandy has over come a lot of odds to be reelected as well as being districted out to running for a new seat….and won…If my memory is still any good…He is the older brother of Carl….

  39. puzzling Wow! Thanks! I would have never remembered that. My husband said it was very “prescient”. lol

  40. Rule of thumb: When politicians say, “We’re NOT doing this so we can ,” they are doing it precisely so they CAN do . Whatever those in power say they won’t use some new-found power for is not only exactly what they will use it for, but is exactly what they wanted it for to begin with. How many times will history scream this lesson at us before we learn it?

  41. Not to take anything away from SMom’s indubitable and undoubted powers of prediction, it should be noted that the gist of the post begged for a summary punch line to this effect:

    ” . . .the Administration has been adopting, and in some cases expanding, Bush terror policies. This includes the statement of Administration officials that, even if a detainee is acquitted in court, President Obama retained the right to hold the detainee indefinitely under his own authority.

    Obama officials insist that they are making progress but simply need more time. However, when combined with the failure to order an investigation into the torture program (without outcome determinative limitations), the delay is seen as additional evidence of the reluctance of the Obama Administration to follow its clear legal obligations in this area. . . .”

  42. Not an expert in con law. Leave that to the attorney members of my family and legal blogs that I read like this one and balkanization. I do know politicians though.

  43. My husband said, “You never did drink the kool aid”. He did I did not. Still voting for Obama not Rocky, Jill.

  44. S.M.,

    Still not able to condemn indefinite detention unless a future possible Republican president does it, are you? Why is that? Do you believe it is wrong under Obama to indefinitely detain the innocent? That’s a simple question.

    As to you voting for Obama, I’m not trying to change your mind. I would expect nothing else from you.

  45. I’ve spent about 3 hours writing a comment in reply to some of the issues raised by JT. Unfortunately, due to its length and concomitant instability of wordpress, I’ve lost it all. I plan to rework it in Word and reply tomorrow when my fingers leave spasm.

  46. SwM,

    Shame on you … SHAME on you … shame ON you … shame on YOU … SHAME ON YOU … geez, I wish I could find another way to say it … simply. :evil:

  47. As the blog’s Doubting Thomas on this issue, I’d like to restate my position in the context of JT’s recent article on the NDAA of 2012 and his reply to Sen. Levin. As I’ve said, the Bill is troubling in some fundamental respects. It does not in my judgment require a call to arms nor an emotional reaction as some commentators (not JT) have advocated. I read Sen. Carl Levin’s website concerning the Bill. As most of you know, Senator Levin is the chair of the Armed Services Committee and has been a senator since 1979. He is an acknowledged expert in national security matters and has worked hard in many causes most would describe as liberal. For example, he opposed the war in Iraq, and many of us on the blog applauded him for it. He has worked for open government and has sponsored legislation to declassify thousands of documents detailing our military operations in the Mideast. He is by all accounts a decent man with a liberal bent and concerned about the civil rights of Americans.

    In his piece JT is rightfully concerned that the Obama Administration worked to defeat various amendments designed to explicitly immunize American citizens from the detentions contained in Sec. 1031. JT rightly argues that a proponent of indefinite detentions for Americans (whomever that might be – no takers yet) could argue that this legislative history would support such an interpretation. But is that really viable? How would a supposition about the motives of the Administration in opposing an amendment stack up against the manifest statement of intention offered by a member of the legislative house that actually passed the bill and who is an avowed expert in the field? This is what Sen. Levin says he voted for and his rebuttal to some of the charges leveled by JT and others about the Bill:

    — It prohibits civilian trials of terror suspects. False. In fact, the legislation specifically authorizes the use of civilian courts.

    — It strips the FBI and other federal law enforcement agencies of their anti-terrorism duties and hands those authorities to the military. False. The statute specifically preserves the role of civilian law enforcement, saying its provisions on detention of foreign al Qaeda terrorists shall not “be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to [terror suspects].” The military is not given any new authority to conduct investigations or make arrests inside the United States.

    — It allows military troops to make arrests on U.S. soil. False. Posse comitatus, the Civil War-era law that bars the military from civilian law enforcement functions, remains unchanged.

    — It gives presidents new authority to indefinitely hold U.S. citizens without charge or trial. False. The legislation does not change current law regarding U.S. citizens. In fact, the bill specifically states that its provisions do not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” While one provision establishes a presumption that foreign al Qaeda detainees will be held by the military, U.S. citizens are specifically exempted from this provision.

    — It allows indefinite detention of U.S. citizens without access to civilian courts. False. The law does not affect the right of habeas corpus – the right to petition a court to challenge detention before a judge.

    Why do I believe him? Well he was in the room, as they say, when this sausage was made. Also, there is language in Sec. 1031 which guarantees that the current body of law protecting detainees won’t be affected along with language providing no expansion in the current powers of the executive. JT and others think this language mere window dressing designed to provide political cover and convenience for advocates of the Bill. This seems belied by JT’s observation earlier in the article that civil libertarians are hammering Levin and others precisely for their vote in favor of this Bill. But I also believe it because I am familiar with the body of law in place which provides protections to detainees through access to American courts. I have discussed these on other threads but SCOTUS decisions in Hamdi, Hamdan, Rasul, and the Posses Comitatus Act must be a part of any discussion about the current state of detainee protections specifically guaranteed by Sec. 1031. To ignore these protections currently prohibiting indefinite detention without judicial review of status and providing both habeas and Geneva Convention rights to detainee – -citizen and otherwise – seems more alarmist than enlightening to these admittedly dim eyes when compared to the clear constitutional insights of our host.

    I rarely disagree with JT, but I am not prepared to accept the ramifications about our elected officials that appear to be inescapable to me in the argument against the Bill. Either Senator Levin is an incompetent buffoon bamboozled by the Administration and other power -seekers hell bent on tyranny or he is a sociopathic liar. I don’ think anyone seriously contends that the Harvard-educated, possessor of the highest security clearance, and senior senator from Michigan is a fool. Nor can I accept that he is overtly lying to my face about the interpretation he and the proponents of the Bill place on this legislation. And even if he is what am I to make of the support such avowed liberals as Barbara Boxer, Barbara Mikulski, Daniel Inoye, John Kerry, Robert Casey, and Patrick Leahy on legislation that passed 93-7? Were they all duped? Are they all liars and megalomaniacs bent on our enslavement? Likewise what am I to make of Sen. Mark Udall, another liberal with impeccable pedigree, who after his amendment guaranteeing citizen immunity from Sec. 1031 was defeated voted in favor of the Bill though with misgivings. Was he disingenuous too? Was he not a man of good faith?

    And what about SCOTUS? Have we seen a desire to diminish legal protections of detainees in the face of legislative or executive pressure? Or have we seen Bush legislation felled time and again by this coonservative Court even as it accords basic rights to detainees that are unprecedented as in the cases of Hamdi, Hamdan and Rasul.

    Like our host, I consider myself an intellectual heir to the legacy of Jefferson and Madison and their fundamental distrust of concentrations of power whether it be political or economic or some other threat to our liberty. I am likewise a great admirer of Benjamin Franklin and the words written by JT should always send a shudder through our veins. But I am also aware that our founders were eminently practical men who would choose security over lofty principle if the stakes were high enough. It was Jefferson who told his Secretary of War Henry Dearborn in response to a perceived threat of Indian attack that, “if we are constrained to lift the hatchet against any tribe, we will never lay it down until that tribe is exterminated, or driven beyond the Mississippi.” Madison reversed the policy he and Jefferson had established to dismantle the nation’s standing army with the outbreak of the War of 1812 and committed himself to building the US Navy into a standing fighting force—all in the name of national security and against his avowed principles.

    I am struck by a recent speech by former defense secretary Robert Gates who said that our government’s inability to act and speak with one voice was as great a threat to our national security as the designs of our enemies. I think that must be correct. After all, he is merely echoing the words of Franklin uttered so many years ago, that, “We must all hang together, or assuredly we shall all hang separately. “ I think that appropriate with this issue. I see no traitors hiding behind this Bill; no charlatans seeking to squelch our freedom. I see what America has always seen – its citizens doing what they think best to protect and defend a nation. We may disagree with their methods, but do we really have to ascribe malicious motives neither justified by word or prior history?

    Franklin said something else too, that I think is just as pertinent as his warning about trading temporary security for essential freedom. Looking back over his life he remarked, “For having lived long, I have experienced many instances of being obliged, by better information or fuller consideration, to change opinions, even on important subjects, which I once thought right but found to be otherwise. “

    I think that good advice even today.

  48. “We may disagree with their methods, but do we really have to ascribe malicious motives neither justified by word or prior history?”

    True, true, but again motive can be irrelevant to malign outcome. Effect is the end result. Motive is only relevant if punishment for a bad result is necessary as some crimes have a mens rea component. In the end, the motives of Congress or Levin specifically are irrelevant to their actions in ever eroding our rights even if it is through vague statutory language rather than express statutory language. That is was done for “the right reason” does not mitigate that it is likely to yield a wrong in result. American citizens of Japanese ancestry were interned during WWII in the name of national security. At the time, it might have seemed like the right reason, but once the dust settled and cooler heads prevailed, the injustice of the action was undeniable. Ultimately, justice and equity are outcome oriented valuations.

  49. “That’s why we all show up here — all the time. As they say, we like the action.”

    To quote Austin Powers, “Yeah, baby!”

  50. Gene H:

    “American citizens of Japanese ancestry were interned during WWII in the name of national security. At the time, it might have seemed like the right reason, but once the dust settled and cooler heads prevailed, the injustice of the action was undeniable. Ultimately, justice and equity are outcome oriented valuations.”

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

    I think that’s what Franklin was saying to us late in his life. The best value judgments occur after an event not in anticipation of it though some you cannot suffer to occur. I certainly get that, too.

  51. Anyone who says, “It can’t happen here,” does not think about the hysterical interment of American citizens of Japanese descent. Based on nothing more than where their great grandparents were born.

    I recall reading of Captain Daniel Inouye, who had just been awarded the Distinguished Service Cross, trying to get a haircut. Capt. Inouye had lost an arm in the action that got him the DSC and Purple Heart, and was in his Army uniform, with its empty sleeve pinned up. The barber told him, “We don’t cut no Jap hair.”

    Fifty years later that DSC was upgraded to the Medal of Honor by President Bill Clinton. Why did it take fifty years for Medals of Honor to be awarded, finally, to Capt. Inouye and 19 other Nisei soldiers of the 442nd Regimental Combat Team? You tell me.

    I have to wonder if even then, had Daniel Inouye not been a US Senator, would he and his 19 compatriots received their hard-earn MoH?

  52. OS:

    Good point. I have to wonder then even more why a guy like Inouye would vote for this Bill given the oppression he personally experienced if he really believed it would foster more oppression.

  53. Dear Prof Turley,
    In tonight’s foxnews debate Romney said that he is very comfortable with NDAA as Obama will not abuse that authority just like he himself will not. I would love to hear your thoughts on that;-)?

  54. Martin Luther King Day. Was not mentioned by Jonathon or blog commenters today. The 5th Grade is going elsewhere. You old farts suck.

  55. I guess Larry Rafferty’s timely article about Dr. King’s vision for America wasn’t enough for the kiddies.

    The Professor is a busy guy and doesn’t get to address every topic (or holiday) he’d like. The Guest Bloggers only publish articles on the weekends. The Good Doctor has gotten (and continues to get) quite a bit of respect here over the years, so might I suggest you fellas lighten up a bit. I know for a fact no slight was intended.

  56. Martin Luther King Day. Sorry Jonathon you suck. This was a holiday for all Ameriicans Even schmucks from Yale. Dick,dick,moe bick, bannana nanna bo bick. Dick.
    Pietro2 be gone.

  57. Sorry Jonathon but we have to move on to another Blog. I saw the previous comments about MLK Day and I have to agree. You suck on this one. I am going elseweher.

  58. I saw that you have some people bailing on you for forgettiing the Martin Luther King Day holiday. You are a dumb scmuck in that regard and if you do not acknowledge it in todays Post then I will think about going South myself. We guys in the joint have a lot of tiime on our hands and one of the tihings we do is pay attention to who is not smart.
    Apologise before Noon or we be gone from this blog. I had a dream.

  59. interesting how many of the doofuses that claim they will no longer read this blog because it does not meet their high standards of celebrating holidays in a manner of which they approve are names that are not familiar to me from reading here for a year or two.

    Its even more interesting that they completely ignored the posting about MLK on this blog. Thats some weak troll right there.

  60. Gene (responding to Mespo): “That is was done for “the right reason” does not mitigate that it is likely to yield a wrong in result.”

    Amen.

    Removing the foot guard from the lawn mower, no matter what the reason, only invites disaster.

  61. The President has moved so far to the right on national defense that the typical election year arguments on ‘defense-weak Democratic candidate’ should be off the table this year. That was always a vulnerability for a Democrat. This President just has to keep repeating the list of people he has had killed starting with Osama Bin Laden to appease the hawks on the right. (The racist right will never be appeased by anything he did, he can just write them off and move on.)

    Obama’s defense position actually goes far to control the nature of the campaign and I think that was part of the plan all along. Going into 2008 I decided to vote for the smart guy and as odious as some of the President’s actions have been, when I use that ‘smart guy’ fact as a filter I have to give him props. He’s made good political decisions on defense (domestic and foreign) for a man (with unique drawbacks as a candidate) wanting a second term. Doesn’t mean I like or agree with them, just that I see a useful pattern emerge.

  62. Some folks have no shame….Just lots of denial….Shame is where change starts….denial the action, is the same….

  63. “Either Senator Levin is an incompetent buffoon bamboozled by the Administration and other power -seekers hell bent on tyranny or he is a sociopathic liar”

    Or both. But I doubt it.

    Still, promises “not to abuse” power, from pols, don’t strike me nearly as powerfully, as words in black and white. Why, after only the last administration record of lying would anyone use the standard of “trust me”, I will only go after (today’s) bad guuys?

  64. “I have to wonder then even more why a guy like Inouye would vote for this Bill given the oppression he personally experienced if he really believed it would foster more oppression.” (mespo)

    Inouye has been a political hack, and convenient symbol, for a long time. Resurrecting him as some sort of telltale on civil liberties at this time is not very persuasive.

  65. DonS:

    “Inouye has been a political hack,”

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

    Was he a “hack” when he was losing arm in combat to protect you and yours and in the process earning a Congressional Medal of Honor? Maybe he was shilling for votes when he endured discrimination upon his return for being Japanese? Arendt may be right when she says that hypocrisy is the worst vice, but ingratitude and attacks on character without proof rank somewhere near second. By the way, attacking a bona fide hero isn’t particularly persuasive either to most fair minded folks.

  66. Yeah, mespo, you’re right, he is a bona fide hero. I’m not sure how that is relevant to the issue at hand. Actually I am sure; it isn’t, just bringing in emotionally laden points creates a smokescreen and possibly discredits the messenger, as it were.

    Why, I wonder, would some not come down on t he side of a quite clear reading of the law in question — on behalf of maintaining civil liberties — instead of parsing in a way that argues for the possibility of abuse of those liberties? I know in the past you have said that parsing is what we do. I understand the attraction of intellectual exercise, if it’s that, but I would not go so far as to launch an ad hominem, implied or not, because of that.

  67. mespo,

    You are offering an argument from authority, a philosophical fallacy. A hero can still get things wrong, that is because heroes are people. Sometimes they act well and sometimes they will act horribly. It is not wrong to honor what a hero did but this does not translate into a global unquestioning stance towards that person.

    Arguments proceed from the facts at hand, no matter who makes them.

  68. A good time to revisit the following PBS documentary, perhaps…

    The Secret Government: The Constitution In Crisis

    The 1987 PBS documentary The Secret Government: The Constitution In Crisis analyzes the threats to constitutional government posed by an illegitimate network of spies, profiteers, mercenaries, ex-generals and “superpatriots” who have tried, at various times, to take foreign policy into their own hands.

    http://www.youtube.com/watch?v=Do_bIz9efKQ (in 9 parts, I believe)

    Based on the book by Bill Moyers:
    http://www.amazon.com/exec/obidos/ASIN/0932020844/ref=ed_oe_p/102-3526130-656

  69. “Flash forward” from 1987 to Thomas Drake:

    http://therealnews.com/t2/index.php?option=com_content&task=view&id=767&Itemid=74&jumival=7755

    “And have you wondered what is really the secret interpretation by the executive branch of section 215 in the Patriot Act?” -Thomas Drake

    …and Lawrence Wilkerson… I quote:

    “I’d probably be in jail of dead right now if it weren’t for the fact that those who would do it to me in this great country fear Colin Powell….”

  70. Mespo Revisited

    Appeal to authority: “As most of you know, Senator Levin is the chair of the Armed Services Committee and has been a senator since 1979. He is an acknowledged expert in national security matters and has worked hard in many causes most would describe as liberal. For example, he opposed the war in Iraq, and many of us on the blog applauded him for it. He has worked for open government and has sponsored legislation to declassify thousands of documents detailing our military operations in the Mideast. He is by all accounts a decent man with a liberal bent and concerned about the civil rights of Americans.

    False dichotomy: “Either Senator Levin is an incompetent buffoon bamboozled by the Administration and other power -seekers hell bent on tyranny or he is a sociopathic liar.”

    Appeal to ridicule: “I don’ think anyone seriously contends that the Harvard-educated, possessor of the highest security clearance, and senior senator from Michigan is a fool. Nor can I accept that he is overtly lying to my face about the interpretation he and the proponents of the Bill place on this legislation. And even if he is what am I to make of the support such avowed liberals as Barbara Boxer, Barbara Mikulski, Daniel Inoye, John Kerry, Robert Casey, and Patrick Leahy on legislation that passed 93-7? Were they all duped? Are they all liars and megalomaniacs bent on our enslavement? Likewise what am I to make of Sen. Mark Udall, another liberal with impeccable pedigree, who after his amendment guaranteeing citizen immunity from Sec. 1031 was defeated voted in favor of the Bill though with misgivings. Was he disingenuous too? Was he not a man of good faith?”

    Thought terminating cliche: “I am struck by a recent speech by former defense secretary Robert Gates who said that our government’s inability to act and speak with one voice was as great a threat to our national security as the designs of our enemies. I think that must be correct. After all, he is merely echoing the words of Franklin uttered so many years ago, that, “We must all hang together, or assuredly we shall all hang separately. “ I think that appropriate with this issue.”

    Historian’s fallacy and more thought terminating cliche: “Franklin said something else too, that I think is just as pertinent as his warning about trading temporary security for essential freedom. Looking back over his life he remarked, “For having lived long, I have experienced many instances of being obliged, by better information or fuller consideration, to change opinions, even on important subjects, which I once thought right but found to be otherwise.”

    Mespo: “Why do I believe him? Well he was in the room, as they say, when this sausage was made.”

    Mespo,

    As shown above, JT has made about several arguments regarding the predicate logic of the statute and the predicate logic involved in the passage of the statute. In lieu of addressing those arguments, you chose instead to shovel out a load of informal fallacies in support of your “beliefs.” As you’re well aware, your beliefs are wholly irrelevant per the issue of statutory analysis.

  71. Those who said, “No.”

    Thomas Coburn (R-Oklahoma)
    Thomas Harken (D-Iowa)
    Mike Lee (R-Utah)
    Jeff Merkley (D-Oregon)
    Rand Paul (R-Kentucky)
    Bernard Sanders (I-Vermont)
    Ron Wyden (D-Oregon)

  72. The comments of Bob, Esq. are accurate and bring some much needed clarity to the discussion of this topic. If I wish to understand a statute, I begin by reading the language. I have done so, and I believe I understand what the words say. It matters not a whit what the drafter may have intended, or whether he or she performed the task with honorable motives. In addition, the NDAA should be read within the context of the rest of the fear-based legislation that Congress has been embracing over the past ten years.

    Finally, history teaches us that those who are legislatively empowered to do something will use that power to the full extent of the grant, and then some. That both Pres. Obama and Mitt Romney have expressed an intention not to utilize that power is merely a promise of benign tyranny and provides no legitimacy to the statute.

  73. Sometimes the obvious is before peoples eyes yet they are blind to it. Look at the Wiki article on House Majority Leader Hale Boggs dying in a mysterious airplane crash in Alaska, paying particular note to the fact that not only was he a dissenting member of the Warren Commission but at the time of his death was a critic of JE Hoover and Nixon.
    http://en.wikipedia.org/wiki/Hale_Boggs

    Then think back to when Eisenhower admonished the country to beware of the Military Industrial Complex, an odd farewell statement for a President and former 5 Star General. Then follow the assassination trail through the 60’s, all of which related to the Viet Nam War. Frank Church who headed up the Senate Committee that detailed CIA abuses was defeated in 1980 by one of the earlier Right Wing PACS. Bob Graham, Iraq war critic and Senator from Florida retiring mysteriously in light of some of his statements and Paul Wellstone’s death in a plane crash 3 weeks before Election Day.

    The underlying strain in this country is a huge MI Complex profiting from war and defense expense. Given the amount of money involved it seems no small stretch of the imagination the pressure brought to bear on our elected officials.

    To expect that all these elected officials operate in a threatless vacuum is naive to say the least.

  74. anon nurse,
    great link to the double secret probation!
    Mike A., you are on fire today. Great critique.
    Mike S.,
    Are you suggesting that the military had politicians killed? Or am I reading it incorrectly? Nasty politics I can believe, but I am not sure I can believe pols being assissinated by the military.

  75. And as I posted earlier:

    Lawrence Wilkerson, “retired United States Army Colonel and former chief of staff to United States Secretary of State Colin Powell” stated, in his Sam Adams’ Award speech:

    “…I’d probably be in jail or dead right now if it weren’t for the fact that those who would do it to me in this great country fear Colin Powell… Listening to Tom’s (Drake) recitation of what the government did to him…, I realize that if Colin Powell didn’t know where all the skeletons were hidden and therefore they’re frightened to death of him, I’d probably be in the same boat as Tom and maybe in jail right now…not that it couldn’t come about anyway…”

  76. “Are you suggesting that the military had politicians killed? Or am I reading it incorrectly? ” (rafflaw re mike s.)

    Don’t have to even believe it’s possible. Just connecting the dots and recognizing the environment of high “threat” and “pressure” to stay within company parameters seems enough to account for failure to stick one’s neck out for civil liberties. We know the payoffs for being a good company man. How many have the character to eschew that?

  77. This conversation about Levin and the legislation is very good. I read the Scotus blog every day, like some people read a newspaper. I find it obtuse and I find the lawyers and law firms which chimne in to be self centered and not all that bright. I may be an old dog and stuck in Folsom Prison like Johnny Cash but I enjoy helping others to obtain freedom and I enjoy the topic of freedom articulated on this particular topic. Mespos long comment above was very interesting. I always like Levin and never thought him a snake– he could lose the glasses though. There are very few Americans who understand where our rights are derived from. The incusion of the Magna Carta provisions by one commenter were Right On. I think it would be good to collect our own constitutional history: Magna Carter, Bill of Rights of 1688, our Constitution, our amendments, and then international treaties signed by the U.S. into one document here. I will get onto that project. Thank you all for sticking up for human rights.

  78. Rheinhold Niehbur not Martin Niemoeller from Wright City, MO. i.e. the quote that they first came for the Communiists.

    Readers need to explore the 1933 Parallels between the Reichstag Fire, the Reichstag Decrees which followed the fire in Feb 1933 and the dismantling of laws leading to the Holocaust. And, the terror atttacks of 9/11 and the Patriot Act and this Soapopera. Niehbur was a German who the Nazis came and got. Not my cousin from Wright City, MO the Lutheran pastor.
    Wait till Herr Mitt gets in. Full circule.

  79. DonS:

    “Yeah, mespo, you’re right, he is a bona fide hero. I’m not sure how that is relevant to the issue at hand. ”

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

    It’s relevant because you called the man a “hack” in some pitiful ad hominen attack on his voting position. I really hating explaining these simple things to you and taking you away from your game of character assasination which, of course, is incredibly relevant.

  80. DonS: “We know the payoffs for being a good company man. How many have the character to eschew that?”

    Not many, not with periodic reminders like Valerie Plame/Joe Wilson…

  81. Bob, Esq:

    I wonder how it is a false dichotomy to reach the conclusion that Levin is either a liar or a fool when the charge is that he is disengenuous in the defense of the legislation he wrote and which you consider to be unconstitutional and draconian. Please give me the other choices besides the one I proffer which is that his is execising his best judgment. Also it is not a falalcious appeal to authority when the aauthority really is an authority. This fallacy is committed when the person in question is not a legitimate authority on the subject. Read up on this one.

    Second, it is not an appeal to ridicule to suggest that the logical extension of one’s argument that Congress has done a bad thing is that the persons in Congress and who voted for the measure have done a bad thing, too. Read up on this one, too.

    Third, and this is all I have time for, your last two “fallacies” are just plain ol’ stupid. They are the writer’s craft employed by both JT and myself to drive home the point and persuade. See his quotations in the article above.

    Face it Bob with a 93-7 vote in the Senate against your position and a statement by the sponsor that is diametrically opposed to your position and not one piece of evidence supporting your premise that this BIll comprises the new letters de cachet, you’re just showing your ideology in place of your logic.

    Your “logical” argument totally ignores the body of law that I cited and which is protected by the language in sec. 1031. It is not enough to say the language is meaningless. Courts don’t condier language in the statute meaningless and especially so when the sponsor cites it as legislative intent.

    You lost in a democratic process. Get over it.

  82. “Nasty politics I can believe, but I am not sure I can believe pols being assissinated by the military.”

    Raff,

    I’m not saying the military specifically did it. There are a wide variety of governmental and non-governmental entities that might be involved in a project such as this via MI Complex interests, of course this is merely my speculation, informed by years of watching the political scene.

  83. Raff,

    The point I was really making is that there are all sorts of pressures on legislators and government executives to perform i a certain manner. I assume much of their performance doesn’t necessarily jibe with their political philosophies and/or ethics as we have seen.

  84. Mike S,

    I think Carl will be retiring after this term….That is the only reason I can see him being a front man for this type of legislation….It is screwy and contradictory to what I know about him…I have met him numerous times…..One of the guys that I helped out in a number of cases was his legislative assistant…

  85. “As I’ve said, the Bill is troubling in some fundamental respects. It does not in my judgment require a call to arms nor an emotional reaction as some commentators (not JT) have advocated.” (mespo)

    “I see no traitors hiding behind this Bill; no charlatans seeking to squelch our freedom. I see what America has always seen – its citizens doing what they think best to protect and defend a nation. We may disagree with their methods, but do we really have to ascribe malicious motives neither justified by word or prior history?” (mespo)

    These are the two points mespo made at the beginning and again now and these are the two points with which I agree and I find it important when talking to myself to also remember that he finds this Bill troubling in some fundamental aspects.

  86. Now … acknowledging my own deep cynicism … is it at all possible that this statute has not been put forward to cover the future, but rather, like the rewriting of what is and is not torture, to give additional cover to past acts of which we are not, at this time, aware?

  87. Marines are found out after taking a leak on some dead Taliban fighters, I have feeling if they took out a sitting US senator, someone would take notice. In Washington if more than 1 person knows, it is not a secret.

  88. Blouise, You might be on to something as usual. Senator Levin is a Swarthmore and Harvard Law graduate and is always around on alum weekends. There is a story here that has not been told I think.

  89. Mike A:

    ” It matters not a whit what the drafter may have intended, ..”

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

    Sorry Mike A. but that is demonstrably not true. Here is the empirical data from SCOTUS compiled by Professor David Law and a summary of frequency of use of legislative history by the Court in its opinions:

    For much of the twentieth century, the Supreme Court embraced the use of
    legislative history in statutory interpretation cases with growing enthusiasm. From the 1930s to the 1980s, legislative history appeared with increasing frequency in the Court’s opinions, reaching a high of 405 citations to legislative history in the 1979 term.3 It was during this time that the Court came to adopt what is now the conventional view that“proper construction” of a statute “frequently requires consideration of [the statute’s] wording against the background of its legislative history and in the light of the general objectives Congress sought to achieve.”4 In more recent years, the Court has taken the opportunity to reaffirm that the practice of consulting legislative history is deeply rooted and likely to endure into the future.5

    http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=david_law&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dlegislative%2520intent%2520and%2520the%2520supreme%2520court%26source%3Dweb%26cd%3D2%26ved%3D0CCcQFjAB%26url%3Dhttp%253A%252F%252Fworks.bepress.com%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1017%2526context%253Ddavid_law%26ei%3Dv_MVT46SE6Lh0QHrzvGYAw%26usg%3DAFQjCNE9QTYZJhTpYRlqvWN_5UMguV6nrg#search=%22legislative%20intent%20supreme%20court%22

  90. Blouise:

    You ought to be a poet since you can readily distill all this rhetoric and crystalize it into these two salient points — and they are the two most important ones as well.

  91. I’ll say it again, Levin [has shown himself] a hack.

    Mespo, you however, appear to be a sweetheart ; )

    All best.

    — Don

  92. You ought to try and speak plain English. No one understands what you are saying, and to tell you the truth, few care.

    Thanks Catherine, I am glad that you showed me this site. There are certainly some crazy ramblings here, you were correct, some sound like they need Meds. Maybe they will find the happiness they deserve.

  93. Our lawyer potus is pushing a legal conundrum & a Constitutional crisis if we are lucky. His strategy for getting re-elected

  94. mespo:

    Legislative history cannot be used to supply meaning to language whose meaning is clear; it is a useful tool when the wording of a statute is vague, ambiguous or confusing. I have certainly had occasion to look to legislative history when arguing an issue of statutory construction. But if there is a conflict between what the history shows the drafters intended and what they actually put in the statute, the statutory language is controlling. It has to be for quite obvious reasons. And there is nothing vague, ambiguous or unclear in the NDAA.

  95. “I think Carl will be retiring after this term….That is the only reason I can see him being a front man for this type of legislation”

    AY,

    We all have our pressure points. Bob Graham another good Senator retired suddenly after criticizing the Bush Administration ad the CIA.

  96. I’m also with Mespo on this, with an assist to Blouise. Some may wonder how I could be and yet also put forth conspiracy theories. It is no dichotomy. The human mind is such that it ca find rationales for truly bad behavior. I don’t believe Hitler woke up in the morning, ruvved his hands together and in traslation said “Heh, Heh, Heh….What evil can I do today”. That he was totally insane does’t negate his ability to rationalize evil indeed, it reinforces it. The people who may, or may not have ordered assasinations of key people and would bring threats down on others, sincerely believe they are doing so in the Country’s best interests. One of the main troubles with the Left, is that just as do the fundamentalists, we see things in stark terms. Life and its attedant facets is far more complex than people try to pretend.

  97. MIke A:

    I agree that the statute is pretty clear on its face that detentions are subject to the existing law I cited. The ambiguity seems to lie in the eyes of those insisting that it calls for arbitrary, indefintie detentions without judicial review. That’s why the legislative history is pertinent in my view.

  98. Mike,

    “The human mind is such that it ca find rationales for truly bad behavior. ”

    So is that what you think is going on here? The go-easy-on-NDAA-group is saying, yeah it’s bad, buy ya gotta understand, these are real patriots? I’m sorry, if that’s the point, what’s the point?

    I can fully comprehend that negative behavior — ok, when compared to some potentially criticizeable standard, as all standards can be criticized — can be thought not negative, even beneficial, by it’s proponents. That’s almost a tautology. It’s certain verifiable in elementary psychological terms even if, where extreme and pathological, it’s called delusion.

    So between the probably delusional patriotism of a Hitler to the questionably “sane” fixations of a Cheney to the what, gullible but misguided lapses of a Levin, there is a seemingly common thread of patriotism.

    It’s a pretty elementary observation. But it doesn’t even touch questions of morality and ethics, even situational ethics. And simply because those sorts of questions are always dismissable because in fact there is no actual authority and we are all opining doesn’t exonerate the effects from being evaluated in a real world context.

    I think this flip flopping between the theoretical frame of behavioral psychology and the practical world of political effect is not useful. I’m not particularly interested in rationalizing behavior or legislation that has potentially disastrous effects on Constitutional rights on the possibility that it has some helpful ones which, truth be told, and already admitted, already exist and are claimed by the powers that be.

    Saying the “left” things in “stark terms” doesn’t help. these issues are neither left nor right. IMO, politics is the problem, not the explanation.

  99. Mespo: “I wonder how it is a false dichotomy to reach the conclusion that Levin is either a liar or a fool when the charge is that he is disengenuous in the defense of the legislation he wrote and which you consider to be unconstitutional and draconian. Please give me the other choices besides the one I proffer which is that his is execising his best judgment.”

    By offering the false dilemma you avoid the need to address the concerns expressed by JT above; i.e. that Levin is relying on “standard cover language for Senators who knew that they would be criticized for voting for the law.” — JT

    Mespo: “Also it is not a falalcious appeal to authority when the aauthority really is an authority. This fallacy is committed when the person in question is not a legitimate authority on the subject. Read up on this one.

    It is a fallacious appeal to authority when you use appeal to ridicule to imply that Levin’s arguments MUST be true based upon your portrayal of his character; lauding the man’s credentials is not a substitute for addressing the arguments made by the man. All you’re doing is dismissing criticism (e.g. the concerns addressed by JT above) by appealing to the man’s accomplishments.

    Mespo: “Second, it is not an appeal to ridicule to suggest that the logical extension of one’s argument that Congress has done a bad thing is that the persons in Congress and who voted for the measure have done a bad thing, too. Read up on this one, too.”

    To be precise, you appealed to ridicule in support of your appeal to Levin’s accomplishments and your false dilemma that Levin is either a liar or a fool.

    “I don’ think anyone seriously contends that the Harvard-educated, possessor of the highest security clearance, and senior senator from Michigan is a fool. Nor can I accept that he is overtly lying to my face about the interpretation he and the proponents of the Bill place on this legislation.”

    Why? Because it would be as ‘ridiculous’ as suggesting that all the senators who supported the bill are “liars and megalomaniacs bent on our enslavement.”

    Mespo: “Third, and this is all I have time for, your last two “fallacies” are just plain ol’ stupid. They are the writer’s craft employed by both JT and myself to drive home the point and persuade.”

    I’m sorry, but by evading all of JT’s arguments using the fallacies described above, what used to be “writer’s craft” falls into the gutter categories of thought terminating cliché and historian’s fallacy; part and parcel of a pattern if you will. That you’ve convinced (deluded?) yourself that Franklin would agree with you here is simply amusing.

  100. “While people appear ready to protest over taxes against “big government,” some of the people often seem to remain silent in the face of the very abuses that the Framers sought to combat from indefinite detention to warrantless searches to assassination.”

    You cannot have political freedom without economic freedom. If you can take 50% of a persons income, why cant you detain them indefinitely? It all stems from the same collectivist/statist ideas. The individual is nothing and the state is everything.

  101. Mike Appleton,

    Would you agree that JT’s analysis above is in fact an analysis of the legislative history?

    Would you also agree that Mespo is offering an ‘alternative’ legislative history that no court would ever take seriously for reasons which I’ve already stated?

    On a side note, I concur with Homer Simpson in saying…

    “Your ideas are intriguing to me and I wish to subscribe to your newsletter.”

  102. Bob,Esq:

    I didn’t evade JT’s arguments. I rejected them as unsupported by the plain language of the BIll. JT dismissed the Bill’s language guaranteeing the status quo in terms of the current legal protections for detainees and I disagreed that a court considering the constitutionality of the legislation would so easily do so or would backtrack reading the Bill as a legislative mandate to do so. JT thought the senators supporting the Bill were guilty of nonfeasance of their duties and I reject that argument as unsupported by the record of genuine debate over the measure and its potential excesses. JT dismisses Levin’s explanation of the intent and operation of the Bill, and I accept it since there is no evidence to the contrary I can see, merely conjecture and criticism from those who find it not to their liking. Levin’s position is a reasonable one and, contrary to your assertions, he is the most knowledgeable person in the country on matters of national security. I would think his personal credibility would add to that expertise but since you want to make that “illogical” I would submit that by experience and access to information alone he is the most knowledgeable of anyone who has commented on both the the necessity for this legislation and its operation.

    I’m still waiting for the explanation you see to Levin’s actions if you are contending that not all the logical possibilities have been explored in my comment. Maybe he’s mentally deranged. I did leave that one out.

    As I said before, you’re whining over the last race. That horse is already in the barn.

  103. “I’m sorry, if that’s the point, what’s the point?”

    DonS,

    I come not to praise these policies but to bury them. To stop this crap you have to understand why supposedly good men like Levin would vote for it in the first place. By demonizing him people miss the point of what is going on. I think we can agree that WWII was perhaps the most justifiable war in history. However, what it did was school the Corporatists who ran this country. It schooled them by showing how much money could be made by war, or the threat of war. The OSS which morphed into the CIA and enjoyed its power as America’s first real intelligence Agency. The Conservatives found a new bogeyman in the USSR.
    This was not to say that Stalin wasn’t every bit as bad as Hitler, he was, but that the USSR and Communism was never the threat they made it out to be. We were the strongest nation in the world, with the strongest military.

    Having the Communist threat though, was enough of a bogeyman that millions and billions went into defense and the defense contractors, the MI Complex, made out so well that they saw it was in their best interests to keep the scare going and the dollars rolling in. The problem is that they did such a good job of it that as time passed everybody started to believe it was true. As new legislators came on board they found themselves briefed by “experts” telling them “secrets” about the danger that had to be hidden from view. That most of the “secrets” were bogus and most of the threats ephemeral became besides the point. Everyone started to believe them, even the “experts” that made them up.

    When the Cuban missile crisis came around almost all of JFK’s experts and the Military were advising attacking Cuba outright. JFK and RFK, who’s father had been a government insider for years, knew that invading Cuba, or shooting missiles might start WWIII and found a way around it, scary but reducing the threat of nuclear war. The patriots, with egg on their faces, began to feel JFK was a threat to the country’s security. Lo and behold, before he could further question the premises behind our intercession in Viet Nam further, JFK was history. That the so-called “patriot experts” also were aligned with the MI Complex was just a “fortuitous” coincidence. They were all doing what was best for the country. And so it went

    This gets me to Carl Levin and why he would support such a bill. He actually believes the “inside crap” fed to him by the DOD, DHS, NSA and CIA. Terror is everywhere, 9/11 can happen again. Rights must be abridged in the name of national security. Unless you understand that this is being done with the best intentions to “protect America” in most of these peoples minds, you can’t effect change.

    Are they wrong? Absolutely? Do we abrogate rights in the service of safety from terrorism? No way, because terrorism isn’t the threat it’s made out to be.
    The issue then is how do you convince people, who believe they are acting in our best interests, using bogus inside information to harm our Constitution. It puts a different perspective on the task. The job is to turn our Country away from the false cold war memes, stop the macho bullshit that characterizes our foreign policy and make this Country into what we’ve always pretended it to be.
    To win the game you need to first understand the rules and their parameters.

  104. Mike A:

    I certainly agree legislative history is only useful if the language is unclear, but how then does one conclude that language which specifies that nothing in the Bill affects“existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States” means the abrogation of SCOTUS’ rulings in Rasul, Hamdi, and Hamdan?

  105. Bob,Esq:

    “That you’ve convinced (deluded?) yourself that Franklin would agree with you here is simply amusing.”

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

    I have no idea if he would agree with me, but I feel certain he wouldn’t leap to the conclusion that our leaders are in insidous conspiracy against our freedoms with no more evidence than this.

  106. Having written the above I must explain why it doesn’t clash with Mespo’s viewpoint. If you look at the problem as a bunch of evil people trying to oppress us, you miss the point. This is being done to “save” us from terrorism. Most of the foreign policy establishment honestly believes we are in danger. They are taking actions they see as realistic. This is not evil, it is ignorance bred from more than a half Century of believing that America is being attacked from within and without. That these beliefs neatly coincide with many “experts” self interest, only reinforces their resolve. From their skewed (and incorrect) perspective we must take extraordinary measures to combat this threat. By overreacting and demonizing you just create greater barriers to overcome. Bush was finally defeated, but the scars of 9/11 were still raw and the majority of the people still felt in terror of the outside world. Politicians basically do what is expedient to get them re-elected. You’ve got to change the America’s terrorized mindset, before you can end this phony “War on Terror”. Certainly sound the alarm against Constitutional encroachments, fright them with all means possible, but we need to stop shouting the sky is falling and just expanding the ripples of fear. The real thing to fear is the influence of money in politics and the growing economic inequality of our citizenry.

  107. I agree MIke S. The question about the real necessity for these measures is open to debate. The motives of those in favor of them are not in my judgment. Demonizing these legislators will do nothing to convince them of the error of their ways. That takes persuasion or an election.

  108. Mespo,

    I am sorry, that was not directed to you but to someone who speaks out both sides of their pie hole. I would also appreciate an 8X10 matte finish photo, I am stunned by black and white photography. B&W photography cannot ever be replaced or replicated.

    I am here because of a friend of mine Catherine. She and some others spoke of this site and I decided to look for myself. It was humorous, as I was sitting at a place, that I go quite often, and I heard a woman speak very unkindly about another person we know in common and I wanted to find out for myself before I made a decision who is crazier. I am still trying to figure out the people on here. I have come to believe that some people are not what they appear in public.

    It has been very interesting so far.

  109. Mike, thanks for fleshing out your point.

    “By demonizing him people miss the point of what is going on” If by this you mean it’s a distraction from the larger issue of underlying control of the context (forces, information, money, etc) of our legislative branch I agree. But I would go further and say that the appeal to patriotism is as much a tactic as a conviction.

    And you say “Unless you understand that this is being done with the best intentions to ‘protect America’ in most of these peoples minds, you can’t effect change.” And further note ” The issue then is how do you convince people, who believe they are acting in our best interests, using bogus inside information to harm our Constitution.

    Ok I (the corporate I) understand this. And I am more than willing to convince people, but we are talking about an area that is inherently emotional and, in my very humble opinion for those who might be also reading, not susceptible to convincing in the ordinary ways available.

    You have stated the situation quite well. But I can’t accept all the implications including that Levin may well be the most stupid of men, or the most arrogant. That is, if Levin is indeed brainwashed in his bubble, appeals to logic and reason are pretty useless. His actions are nefarious. That he may be a brainwashed but cuddly and patriotic teddy bear doesn’t.change a thing. Only that now we “understand”; poor Carl, he can’t help himself.

    Or something like that.

  110. Not As Insane.

    Sorry if I got a little thin-skinned there. I did. Like you I enjoy B&W much more than color. I see more of the subject and less of the veneer.

    Here’s a favorite:

    By the way you’re seeing a rarity tonight as I faceoff against my friends JT, Bob,Esq., and Mike A. We have a delightful little salon and we love these debates. Welcome aboard.

  111. Mesop,

    Thank you for your warm welcome. Black & White brings out qualities that are unseen in panaramoric color.

    The choice of finish in photography is because matte last longer and does not show cracking or shading as quickly.

  112. Mike S.,

    I’m so glad you addressed the “dichotomy” within my two posts as kindly as you did. I wondered if I would have difficulty defending the premise of my second post from that of my first as I felt like I was falling into a mild dissociative state by suggesting the second after supporting the first.

    Congress does that to me all the time … okay, now I see myself falling into a mild form of transference so it’s probably best to leave the subject of my mental health for another day.

    Seriously, I see no ” traitors … charlatans seeking to squelch our freedom” (mespo) but also there seems to be no real reason for the statute to exist in the first place. So why this big push from the Administration … because charlatans want to take our freedom or, perhaps, is it to give additional cover to those within certain agencies who, as in the torture arena, violated laws during a previous Administration and are demanding increased protection in order to thwart future prosecutions?

    Well that’s the thought that came to me after I returned from leading my troops against the Spanish Armada … “I know I have the body of a weak and feeble woman, but I have the heart and stomach of a King …”

  113. “We have a delightful little salon and we love these debates.”

    Yes, sir. In the words of the immortal Jed Clampett, “It’s a real crowd pleaser.”

  114. Blouise,
    I, for one am intrigued by your suggestion of the real motive behind this bill, I have said for 3 years that Obama made a deal with George W. to not go after the torturers. But I could not understand what Obama got in the deal. Maybe he was scared into taking torture off the table over a fear of a super boogeyman issue. That could be how deep the torture actually went and who was included in the program. I wonder?

  115. It is what it is, until it is not what it should have been in the beginning because it never was to start with.

  116. DonS,

    It’s not about Levin being cuddily, it about his being brainwashed, by the very people he is being briefed by.

  117. Mike S.,

    Now that you bring that up, I seem to recall…but for the moment….I had a brain fart….Thank you….

  118. rafflaw 1, January 17, 2012 at 11:04 pm

    Elaine,
    Great link to Prof. Turley’s appearance nCountdwn.
    Great job Professor!

    DITTO X 10

  119. I think you guys dismiss the possibility of evil conspiracy far too readily.

    Money is an acid that dissolves the principles of almost anybody, and the dumb truth is that we select our politicians primarily on personality, party line, and money, and those have nothing to do with their principles. In fact the unprincipled have a demonstrable advantage; just look up John Kerry and swift boating. In politics, retaining your principles disarms you, it makes you the guy bringing a knife to a gunfight.

    If somebody has a coveted position and salary and power, and remains there, chances are that is because of survival of the fittest. But in Congress, to steal a page from Machiavelli’s advice to the Prince, it is the appearance of principles that helps get one elected, not the actual practice of them.

    And that is true on both sides of the aisle; and there is no doubt in my mind that Republicans preach about spending less while spending more, and Democrats preach about progressive values while colluding to strip them from us, and both sides constantly plead weakness, no matter what their numbers or exercisable powers, in order to raise more campaign cash.

    After all, pick any issue on either side, and the stock answer from a pol will always be, “Donate, so we can fix it.” The root of the message is obvious: the law is for sale. Raise enough money and you can buy it.

    The same thing is true for the pol: His actions are for sale. Oh, he could filibuster, he could put a hold on it, he could speak on the floor anytime he wants, but if the issue doesn’t raise enough campaign cash he won’t.

    Assuming that politicians are anything like typical people is a mistake. Assuming they are dumb is a mistake, assuming they are easily fooled is a mistake, believing them when they point the finger at the other party is a mistake. Very few could repeatedly win elections if they were as dumb as they pretend, or so stupid they did not even understand the powers of their own job.

    The most probable reason for betrayal and duplicity in politics is not helplessness or stupidity or misunderstanding, it is a conscious decision to betray one’s constituents and then pretend one was coerced, tricked, threatened, overwhelmed by the other party, or just misunderstanding what they were voting for, to feign confusion.

    It is why they don’t read the bills; they don’t have to read them, because it isn’t about the law, the vast majority of Congress does not care how that affects us, it is about who wants it, how it can be spun, and who is expected to get donations because of it, and from where. In other words, their primary concern is how it affects the flow of money. How it affects the 99% is a distant second, because most of the money isn’t coming from them.

  120. An opposing view… Conor Friedersdorf’s response to Andrew Sullivan’s piece in the Atlantic:

    http://www.theatlantic.com/politics/archive/2012/01/dear-andrew-sullivan-why-focus-on-obamas-dumbest-critics/251528/

    Excerpt:

    After reading Andrew Sullivan’s Newsweek essay about President Obama, his critics, and his re-election bid, I implore him to ponder just one question. How would you have reacted in 2008 if any Republican ran promising to do the following?

    (1) Codify indefinite detention into law; (2) draw up a secret kill list of people, including American citizens, to assassinate without due process; (3) proceed with warrantless spying on American citizens; (4) prosecute Bush-era whistleblowers for violating state secrets; (5) reinterpret the War Powers Resolution such that entering a war of choice without a Congressional declaration is permissible; (6) enter and prosecute such a war; (7) institutionalize naked scanners and intrusive full body pat-downs in major American airports; (8) oversee a planned expansion of TSA so that its agents are already beginning to patrol American highways, train stations, and bus depots; (9) wage an undeclared drone war on numerous Muslim countries that delegates to the CIA the final call about some strikes that put civilians in jeopardy; (10) invoke the state-secrets privilege to dismiss lawsuits brought by civil-liberties organizations on dubious technicalities rather than litigating them on the merits; (11) preside over federal raids on medical marijuana dispensaries; (12) attempt to negotiate an extension of American troops in Iraq beyond 2011 (an effort that thankfully failed); (13) reauthorize the Patriot Act; (13) and select an economic team mostly made up of former and future financial executives from Wall Street firms that played major roles in the financial crisis.

    I submit that had Palin or Cheney or Rumsfeld or Rice or Jeb Bush or John Bolton or Rudy Giuliani or Mitt Romney proposed doing even half of those things in 2008, you’d have declared them unfit for the presidency and expressed alarm at the prospect of America doubling down on the excesses of the post-September 11 era. You’d have championed an alternative candidate who avowed that America doesn’t have to choose between our values and our safety.

    (end of excerpt)

  121. There’s still a lot of time between now and the election… If the truth were known about a covert, domestic program that’s currently in play, I’d like to think that it would be a game-changer.

  122. Mike S wrote: “It’s not about Levin being cuddily, it about his being brainwashed, by the very people he is being briefed by.”

    Agree. (the cuddily business was just a throwawy)

    Makes one wonder what he does with all the “outside”, well documented and presented counter information from, e.g., Prof. Turley? How well defended and in denial he must be. That’s a frightening when this supposedly bright Senator becomes a generator and mouthpiece for extremist, Constitution-destroying legislation.

  123. Tony C. cites ‘conspiracy’ and essentially talks about the corrupting effects of money and influence. Upthread I suggested the ‘payoffs’ for being a good company man which conditions the whole Congressional environment. Mike S describes virtual brainwashing, which is conditioned by being softened up to be a ready and willing subjects to do the MIC/corporatist bidding.

    All part of the same picture, regardless of what we call it.

    Someone mentioned the “big boogeyman” scare that might be cementing Obama, and the Congresscritters in line.

    All these are easy decisions for the pols; there is not much of a lobby for civil liberties of a strength to counter the false assumptions and information with which we are flooded. And, in m view, there is less opposition all the time.

  124. Mike,
    “It’s not about Levin being cuddily, it about his being brainwashed, by the very people he is being briefed by.”
    This is an excellent comment Mike. Something that most people do not understand is the amount of influence and control, a serving elected official’s advisors and assistants have over his ability to obtain correct data; his public image; and as part of that, his statements made to the public.

    Washington (for example) could not operate if everyone was new every few years. there is an established group of “Washington Insiders”; Administrative proffesionals who do the day to day decision making and action taking. The politician at the head is responsible primarily for; yep; you guessed it; Politics.

    The CIA is a prime example and one whose structure has been widely publicised over the past fifty years or so. The Director of the CIA is a political appointee. he often has only limited knowledge of the Agency’s procedures and actions as he only knows what the Congress and public have been told. Not necessarily false imformation but not Comprehensive either. His job is a political one and to oversee the actions and policies of the Agency.

    The real nuts and bolts stuff. the Analysis of events; planning of operations; monitoring data; and all the rest are handled by lower level staff supervised by the Assistant Directiors who are not appointed, but have typically risen through the ranks of the Agency and are extremely knowledgeable and therefore are the Directors “Go To” guys for advice.

    So who runs the CIA? Not the politicians and neither do they control Washington and Congress in the same way.

    Tony C,
    “I think you guys dismiss the possibility of evil conspiracy far too readily.

    Money is an acid that dissolves the principles of almost anybody, and the dumb truth is that we select our politicians primarily on personality, party line, and money, and those have nothing to do with their principles………………………………………………….”

    I agree with everything you say. Much of the Evidence for The New World order Conspiracy is here on this site if we are paying attention. Looking at your comment and Mike’s comment is again reinforcing my repeated believe and plea for everyone to open their eyes to the proof.

    Now just to contradict myself: It is unlikely that anyone will be able to provide evidence to absolutely prove that there is a Conspiracy of Evil or otherwise. Very difficult to prove Conspiracy; especially if it is your purpose in life to hide your conspiracy and the consequences of leaking proof might be; shall we say severe.

    What we must do is look at the ways we group people in our society i.e. Republican; Democrat; 1%; 99%; Religiously Mainstream, Fundamentalist, Evangelical, Atheist; Right-Wing; Left-Wing; Liberal; Conservative; Black; White; Hispanic; Asian; Native American etc.

    Now if we examine the actions of these different groupings; what we discover is that. The groups who have members in common; also tend to act in the same ways. So a person who is a membner of the Liberal group and the 99% will find that both groups take similar stances on many issues and act in similar ways when pressed to the wall.

    So; when we place together those groups that are allied with the 1% by philosophy or greed; we discover that they are supporting the same laws and restraints; using their money in the same way to a lessor or greater extent depending on the level of wealth and power. We also find that these laws and policies have been slowly eroding our Constitutional rights and that the speed is increasing. They have initiated wars in countries for no good reason and have masked this by presenting propaganda to justify our involvement by siting unattainable goals and false agendas.

    They have falsely kept our wages low and allowed prices to rise beyong our reach and have made survival beyond the reach of many.

    They have used Tax breaks; Non-taxable corporations; Trust Funds; Tax loopholes; and many investment products designed specifically to help them avoid paying taxes

    They have moved millions of American jobs overseas thereby increasing the level of despeation for jobs and depriving American workers of the ability to make a living wage who before were able to do so.

    They have convinced millions of Americans to support and defend their actions even though they personally have or will benefit from them personally based on other issues such as Patriotism; Gun Ownership; the fear their money will be taken and spread out to less fortunate people; Religion (oh that’s a big one); etc.

    So there is no “Evidence” of a Conspiracy. But when so many of similar interest; act in similar ways detrimental to the nation and people; and so many who will not benefit support these groups in the name of Religion or National pride or Fear of Socialism; it seems clear that what may not be proven is indeed true.

    If we fail to act on this belief; if we wait for the proof; it will be too late. We must act on the assumption that the above mentioned “Coincidences” are not. That they are indeed the only “Proof” we will get of this most Deadly Conspiracy.

    If by some unimaginable chance; we are wrong and it is all just Coincidence; we will have at least done what we should do and stopped the individual actions.
    Better Safe Than Sorry

    Mike,
    “I come not to praise these policies but to bury them. To stop this crap you have to understand why supposedly good men like Levin would vote for it in the first place. By demonizing him people miss the point of what is going on. I think we can agree that WWII was perhaps the most justifiable war in history. However, what it did was school the Corporatists who ran this country. It schooled them by showing how much money……………………..”

    Absolutely correct. This just adds to the “evidence” for a Serious conspiracy.
    When you look at how the MIC feeds the politicians and the politicians feed the MIC. When you consider how America and Americans have become so willing to stick our nose and our military in wherever we feel like for whatever sad reason; including the ridiculous claim that a Communist victory in Viet-Nam would somehow threaten America. Please. Look at how gulible we have become as a people. But history shows it is not the first time. Hitler had to go into Czekoslovakia to rescue German nationals being mistreated. False. Hitler attacked Poland because the Poles crossed the border and killed Germans. False. We attacked Iraq because there was evidence of WMD. False We attacked Afganistan to clear out Alqueda and get rid of the Taliban because of their many human rights abuses and support of Alqeda. False (no one believes we can drive out the Taliban or defeat them any more than we did or could defeat the North Vietnamese and Viet-Cong).

    I never felt personally threatened by a Russian in my life. I never believed that the Russian people wanted war with America and as I got older it became pretty clear that the leaders didn’t either. I now see how that fits with the rest of the “evidence” of a Conspiracy.

    Prof.
    “Thankfully are we not facing the type of horror faced by Niemöller, but the logic is the same: I do not need to object unless the government denies me a right.”

    Yet professor. Not facing that type of horror Yet. I think we are not far from it. The climb to the top is slow but once you tilt over the top the slippery slope to just that sort of horror is fast; almost imperceptably fast.

    I think the comments I have mentioned make a good argument for just that situation approaching with vigor.

  125. “How well defended and in denial he must be.”

    FL/DonS,

    Yes they all are in denial. We hear figures that the average person in Congress must spend 3 to 4 hours per day raising campaign funds. Imagine what kind of personality it takes to do that. I was embarrassed and hesitant about buying candy for my children’s school sales. I don’t borrow from friends I’d be embarrassed to do so. Yet these pols regularly ask for donations to themselves and no doubt much of what they get comes with strings attached.
    Emotional defense and denial is probably a self selective prerequisite for even running for office.

  126. “So there is no “Evidence” of a Conspiracy. But when so many of similar interest; act in similar ways detrimental to the nation and people; and so many who will not benefit support these groups in the name of Religion or National pride or Fear of Socialism; it seems clear that what may not be proven is indeed true.”

    AMS,

    Amen brother we’re on the same page. My particular caveat though is this. All “Ism’s” are the bullshit used to distract people from the reality of human existence. We are like the society among the “Great Apes”. The Alpha male gets his choice of the “goodies” including females and what’s left flows down from a spire (1%), on top of a pyramid that contains the other 99%. With all the supposed sophistication of modernity, human society still is set up like that of our genetic relatives. Politics is the vehicle used to distract us from the fact that what really is going on is a battle about who gets to be on top.

    Seen from this perspective it is all about ego to those who want power and to bask in the glory of it. In some societies, N.Korea and Syria for instance, power being the impetus is clear to see. Kim Jung Un and Assad have no political philosophy except to rule. That was the way it was with Kingdoms in the past. Today other national setups, like ours, are more sophisticated in presentation and use “Ism’s” to hide the fact they are really all about money and power. The saving grace of a society like ours, or Great Britain, is perhaps that by muddying the structure and not allowing one ruling potentate, with an aristocracy in tow, many plutocrats want to run the show. So while they sometimes coalesce in screwing us, at the same time they keep fighting each other to get to the top of the heap. It is this division of desires that has kept things from a total return to Feudalism of the Corporate variety.

    So I do believe in conspiracies, like the assassinations of JFK, MLK and RFK,
    I don’t have any real idea of which Alpha Male faction(s) did the deeds.

  127. Mespo: “I didn’t evade JT’s arguments. I rejected them as unsupported by the plain language of the BIll.”

    You mean the plain language of the 1021 that provides for the authorization to use the military to indefinitely detain people without charge or trial without any exemption for American citizens? That plain language?

    Mespo: “JT dismissed the Bill’s language guaranteeing the status quo in terms of the current legal protections for detainees and I disagreed that a court considering the constitutionality of the legislation would so easily do so or would backtrack reading the Bill as a legislative mandate to do so.”

    But the court would accept all the informal fallacies you offered in support of that claim over the statutory analysis and legislative history offered by JT above? And what of the authorities you cited?

    Let’s review:

    Mespo: “I have discussed these on other threads but SCOTUS decisions in Hamdi, Hamdan, Rasul, and the Posses Comitatus Act must be a part of any discussion about the current state of detainee protections specifically guaranteed by Sec. [1021]. To ignore these protections currently prohibiting indefinite detention without judicial review of status and providing both habeas and Geneva Convention rights to detainee – -citizen and otherwise – seems more alarmist than enlightening”

    Hamdi: It appears to me that citing Hamdi begs the question as to whether this act of congress disposes of the habeas protection provided in Hamdi; as described by JT above. Scalia would say the issue is whether congress effectively codified the suspension of habeas with 1021. Nonetheless, good luck getting that issue into court if the president, by whatever whim or caprice, has declared a defendant U.S. Citizen to be an ally of al Qaeda.

    Hamdan: Didn’t that deal with the legality of military commissions under the law of war and Geneva; not the legality of detention (without charge) until the end of “war?” I’d say that bears little to no relevance to the objections JT has raised against NDAA 1021

    Rasul: Wasn’t this a strictly jurisdiction case; i.e. power of U.S. courts to entertain habeas petitions from Guantanamo Bay. And the relevance of this case to the objections being raised against NDAA 1021 is what?

    Posse Comitatus: Levin’s assertion that Posse Comitatus remains ‘unchanged’ is not only irrelevant but misleading. He is correct in that the NDAA did not alter or amend Posse Comitatus; thus leaving it ‘unchanged.’ It is misleading, however, since NDAA 1021 is “an act of congress.”

    And Posse Comitatus says what?

    “From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress”

    Furthermore, Posse Comitatus only applies to the Navy and Marines by way of a DOD Directive, which can be voided by the Executive at any time, and currently does not apply to the U.S. Coast Guard. But who’s counting?

    Mespo: “JT thought the senators supporting the Bill were guilty of nonfeasance of their duties and I reject that argument as unsupported by the record of genuine debate over the measure and its potential excesses.”

    JT cited actual portions of transcripts. What did you rely on? Further, how did you counter his arguments?

    Mespo: “JT dismisses Levin’s explanation of the intent and operation of the Bill, and I accept it since there is no evidence to the contrary I can see, merely conjecture and criticism from those who find it not to their liking.”

    Again, when I say you evaded JT’s arguments, I mean that he made claims and offered SPECIFIC SUPPORT FOR THOSE CLAIMS which you did not address at all. Don’t tell me his table/argument isn’t supported when you made no attempt to knock out a single leg.

    Mespo: “Levin’s position is a reasonable one and, contrary to your assertions, he is the most knowledgeable person in the country on matters of national security.”

    Yeah, he’s got Posse Comitatus down; doesn’t he?

    Mespo: “I would think his personal credibility would add to that expertise but since you want to make that “illogical”

    No, my problem, nay, one of my problems, was with your appealing to his credentials in lieu of making a valid argument. Let’s be clear.

  128. The electorate functions within a given universe erected and maintained, through “politics”, by and in a manner to benefit those already in control.

    A conspiracy, large and small.

    The problem: how to change a universe that is self sustaining without destroying it’s essential fabric, the people.

  129. @angryman: t is unlikely that anyone will be able to provide evidence to absolutely prove that there is a Conspiracy of Evil or otherwise.

    Absolute proof isn’t necessary in life or law, and the conspiracy does not even have to be illegal. The proof is in the results; if a conspiracy did not exist there would be very few laws on the books that some majority of people did not agree with (I say “some” majority, because it can be a different majority of people for each law, it would not always be the same set of people in the majority). Policies, wars, expenses, tax breaks and departments that some majority opposed would end. Laws that favor, support or divert money to single-digit percentages of the population would never pass. Contracts that overpaid private industry by millions or billions of dollars would never be written, much less signed.

    I think it is fair to say we do not live in that world. The Bush tax cuts for the rich have been opposed by the majority for quite a long time. Both a Public Option and the stronger Medicare for All was supported by votor majorities. Criminal investigation and punishment of bank executives had majority approval (and probably still does).

    The conspiracy exists; we do evil, we support evil, and our laws and taxes overwhelmingly favor corporations, the wealthy, celebrities and politicians themselves. We do not need absolute proof, we have the statistical proof of far too many wildly improbable outcomes.

  130. To clarify, I meant too many wildly improbable outcomes if the majority ruled, or the government was actually “by the people, for the people.”

  131. Bob,Esq:

    You need to read those SCOTUS cases again since they clearly accord detainees habeas corpus rights, rights to judicial review of status, and Geneva Convention Rights. A nice overview is found in Temple Professor Mark C. Rahdert article in 2008 found here:

    http://www.temple.edu/law/tlawrev/content/issues/80.2/80.2_rahdert.pdf

    While conceding certain open questions he agrees those SCOTUS decisions guarantee habeas review, judicial status review,and Geneva Convention protections to detainees. Coupled with Ex Parte Milligan, these decisions reflect the Court’s deference to Congressional checks on the Executive in time of war, but also show a willingness to preserve some bedrock principles of due process and examination of Executive findings even during these emergencies.

    Rahdert also reflects the consensus view that impingements on the right of habeas corpus by Congress must be explicit to pass constitutional muster.

    “principles of habeas corpus jurisdiction recognize that there are
    limits on Congress’s power to withdraw the core functions of habeas corpus from the courts, and the Court’s cases occasionally go to great lengths of statutory construction in order to avoid concluding that habeas corpus jurisdiction was suspended.171 Protection of habeas corpus jurisdiction is critically important, because without it there may be no opportunity for the double check that is necessary to limit executive emergency power. As the Court recognized in Rasul, habeas challenges to the government’s authority to detain alleged enemies of the state lie close to the core purposes of habeas corpus jurisdiction.172 Thus, at a minimum, any withdrawal of habeas jurisdiction by Congress must be unambiguously explicit. Arguably it should also be tied to documented findings
    that the constitutionally prescribed circumstances for suspension of habeas
    corpus exist.173:” (p. 478)

    Look, you can assert that Posse Comitatus has been repealed by this Act of Congress. Hell, you can assert that the entire Constitution along with its amendments has been repealed by the Bill as some commentators do but that is not within the four corners of the Bill’s language either. Finally, you can cherry pick the language which provides for indefinite detention but how do you then avoid the plain language saying the current body of law is not affected? How do disregard the plain language of the signing statement of the President interpreting the legislation precisely as I’ve said? How do you disregard the plain language of the BIll’s author interpreting the Bill just as I ‘ve said. How do you disregard the DOJ summary interpreting the Bill just as I’ve said? Finally, how do you square these notions of imminent doom coming from a Democratic President, a Democratic Senator, and a Justice Department headed by a Democrat? To accept your view means the entire government from Bush Republicans to Obama Democrats are in direct conspiracy to enslave the American public? Is that really your position? That is the logical extension of the rhetoric against this Bill. And you say I avoid the argument.

    These issues will not be decided by you or me or by talking heads on cable TV. They will be decided by SCOTUS after hearing reasoned debate from learned people. That’s how we do it in democracy, not with petitions or inflammatory rhetoric, or castigating blog comments.

  132. I still see smoke, but no fire, Bob.

    My primary issue with the NDAA is its vagueness and the propensity of bad actors to exploit vagueness. As mespo says, this will all be decided by SCOTUS. My concern is what some overreaching zealot will do to give some citizen proper standing. It’s questionable legislation to be sure, but it’s not prima facie evil like the Patriot Act or SOPA or ordering torture or saying the President has the right to execute citizens without due process.

  133. Gene H:

    You put your finger precisely on the problem I see here. This legislation provides enough room for a nefarious camel to visit some real damage on the Constitution until some court pulls his nose out from the tent.

  134. Mespo: “To accept your view means the entire government from Bush Republicans to Obama Democrats are in direct conspiracy to enslave the American public? Is that really your position? That is the logical extension of the rhetoric against this Bill.”

    Of course, that would include Jonathan Turley and Mike Appleton as well.

    Is that really your position Mark? Once again, in lieu of engaging the argument, you’ll just summarily dismiss our concerns as ‘crazy conspiracy theories?’

  135. Bob,Esq:

    I’ll leave that for them to say, but if that is not the logical extension it can only be that they proponents were duped. I’m not dismissing yours and others propositions as crazy conspiracy theories, I merely point out another reasonable — and in my judgment more plausible — interpretation of the Bill’s language that is glossed over by detractors under the rubric of “meaningless language.” Bottom line the Bill is neutral on the issue of indefinite citizen detention but does codify combatant detention because neither side could get the votes for the more extreme positions with regard to citizen detention. This was Feinstein’s compromise language and, while troubling, left the matter for SCOTUS to flesh out. Political courage–no; Tyrannical design- no. Politics as usual — yes.

  136. Mespo: “This legislation provides enough room for a nefarious camel to visit some real damage on the Constitution until some court pulls his nose out from the tent.”

    And drafting legislation that now allows camels to poke their hitherto prohibited noses into the tent isn’t malfeasance how?

  137. “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

    —Some crazy conspiracy theorist.

  138. Bob,Esq.:

    That diminutive angel also said this:

    “If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers..”

    That’s all I am saying too.

  139. “Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.

    Those truths are well established. They are read in every page which records the progression from a less arbitrary to a more arbitrary government, or the transition from a popular government to an aristocracy or a monarchy
    -James Madison “Political Observations” 20 April 1795

    “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.

    The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.”
    -James Madison September 14, 1793

  140. Here’s another:

    Whether the United States shall continue passive under these … accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events, … is a solemn question which the Constitution wisely confides to the legislative department of the Government. In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation.

    ~James Madison, War Message to Congress Washington, June 1, 1812

  141. “The means of defense against foreign danger historically have become the instruments of tyranny at home.”
    — Another nutty conspiracy theorist

    If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.
    — James Madison

    Ah, if only Madison himself were here to “weigh in”…

  142. anon nurse,

    Thanks for the chuckle. As luck would have it, I watched a really bad Sam Peckinpaw movie just last night. :D

  143. Gene, Was it so bad that you wouldn’t recommend it? A little Peckinpah from time to time is… well… Good?

    rafflaw,

    I do enjoy that clip… I won’t speculate as to why…. :-)

  144. anon nurse,

    Sure, I’ll tell you what it was, but only so you can avoid it. “The Killer Elite” made in 1975 staring James Caan and Robert Duvall. The idea was good, a traditional triple-cross, but the script was simply terrible. Considering it was a Peckinpah film, the action sequences were equally as bad as the script. It was no “The Wild Bunch”, “Straw Dogs”, “The Getaway” or “Pat Garrett & Billy the Kid”, that’s for sure. It wasn’t even as good as “The Osterman Weekend”.

  145. Gene, Thanks for the tip. I’ve seen “The Osterman Weekend” and “Straw Dogs”, but not any of his others…

  146. “This is another window into … the steady assault against civil liberties,” Hedges says. “What makes [the ruling] so monumental is that, finally, we have a federal judge who stands up for the rule of law.” -Chris Hedges

    Thursday, May 17, 2012

    Journalist, Plaintiff Chris Hedges Hails “Monumental” Ruling Blocking NDAA Indefinite Detention

    http://www.democracynow.org/2012/5/17/journalist_plaintiff_chris_hedges_hails_monumental

    “In a rare move, a federal judge has struck down part of a controversial law signed by President Obama that gave the government the power to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial — including U.S. citizens. Judge Katherine Forrest of the Southern District of New York ruled the indefinite detention provision of the National Defense Authorization Act likely violates the First and Fifth Amendments of U.S. citizens. We speak with Chris Hedges, a journalist who filed the suit challenging the NDAA along with six others, and Bruce Afran, the group’s attorney. “This is another window into … the steady assault against civil liberties,” Hedges says. “What makes [the ruling] so monumental is that, finally, we have a federal judge who stands up for the rule of law.”

    Chris Hedges, senior fellow at the Nation Institute. He is a former foreign correspondent for the New York Times and was part of a team of reporters that was awarded a Pulitzer Prize in 2002 for the paper’s coverage of global terrorism. He is the author of a number of books, including Death of the Liberal Class and The World As It Is: Dispatches on the Myth of Human Progress. He is a plaintiff in a lawsuit challenging the National Defense Authorization Act.

    Bruce Afran, lawyer representing Chris Hedges and other plaintiffs in a lawsuit challenging the National Defense Authorization Act.

    Excerpt of interview, which touches on “appeal” issues:

    AMY GOODMAN: So, what happens now? I mean, this was struck down by Judge Forrest. Where does it go now?

    BRUCE AFRAN: Well, technically, there could be a trial on a full issue of a permanent injunction. That very rarely ever happens. Usually, the government will appeal. They have 60 days to appeal. We don’t know what will happen. We, Carl Mayer and I, my co-counsel, are calling on the government to issue a permanent—agree to a permanent injunction, put this permanently, you know, under a rule that it is unconstitutional and can’t be enforced. Right now it is illegal. The judge has put a hold on it. And we’re calling on the President to agree to make it a permanent injunction.

    AMY GOODMAN: Chris Hedges, where do you go from here?

    CHRIS HEDGES: I think that, you know, this is a never-ending battle. The security and surveillance state has already boxed us in, those of us who don’t conform to the official narrative. And this was a tremendous victory, but there are still important issues to be fought. The Espionage Act is a good one, the Authorization to Use Military Force Act itself, the PATRIOT Act, the refusal to restore habeas corpus, of course the FISA Amendment Act, the warrantless wiretapping. There are still other issues that those of us who care about an open democracy have to go out and fight for.

    AMY GOODMAN: I want to thank you both for being with us, Chris Hedges, senior fellow at the Nation Institute, former correspondent for the New York Times; Bruce Afran, lawyer representing Chris Hedges and the other plaintiffs in this lawsuit challenging the National Defense Authorization Act. Judge Forrest has struck down the statute that would allow for the indefinite detention of anyone anywhere considered a terrorism suspect, without charge, without trial, including U.S. citizens.

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