In one of the greatest attacks on civil liberties in this country’s history, Democratic and Republican Senators voted yesterday to approve a measure as part of the $662 billion defense bill that would allow for the military to hold both citizens and non-citizens indefinitely without trial — even those arrested on U.S. soil. In a welcomed change, President Obama has committed his Administration to fighting the measure as inimical to the rule of law. The measure was pushed by Carl Levin (D – Michigan) and John McCain (R – Arizona). While some members of Congress like Ron Paul (R., Texas) have denounced the bill, the measure passed at the same time that Administration lawyers publicly declared that the military and intelligence agencies alone should decide whether a citizen should be killed without a charge or hearing (including killing citizens on U.S. soil) — a position supported by President Obama who has ordered the killing of U.S. citizens under his claim of inherent authority.
Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, tried to pass an amendment that would have limited it to suspects captured “abroad” — a measure that still raised constitutional and international law problems. However, even that modest amendment failed on a vote of 45 to 55. Here is the voting roster, which includes Democrats Begich (D-AK), Casey (D-PA), Levin (D-MI), Inouye (D-HI), Landrieu (D-LA), Manchin (D-WV), McCaskill (D-MO), Pryor (D-AR), as well as independent Lieberman (ID-CT). A watered down amendment was then passed 99-1 that left the matter (it would appear) to the Administration. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.
Virtually all Democrats and Republicans voted to strip citizens of their rights in a vote of 93-7.
What is fascinating is the Senators insisted on passing the provision despite the fact that the Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all opposed it on national security and legal grounds. Nevertheless, people like McCaskill who are running for reelection want to prove that they are tough on terrorism by stripping citizens to the right to basic due process rights. The fact that the Democratic and Republican Senators took this step without even holding a hearing is a testament to the state of civil liberties in the United States.
It is unclear whether the President will have the integrity and courage to carry through on this pledge to veto this pernicious bill. For civil libertarians, we have reached our Alamo moment where the most basic principles of the rule of law are at stake. The Congress has long been indifferent if not hostile to civil liberties, but as discussed in an earlier column (and here), civil liberties has reached one of the lowest ebbs in both politics and policy in this country’s history. Such measures are now met with a gigantic and collective shrug from an indifferent populace.
The national debate has become positively otherworldly for civil libertarians. As the Senate set about rolling back civil liberties, Administration lawyers — CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson — publicly explained to an audience this week that the decision whether to kill a U.S. citizens anywhere and anytime must be left solely to the discretion of the military and intelligence branches. President Obama has supported this view and claims the right to kill any citizen on his unilateral and unchecked executive authority. I discussed this horrific policy in a prior column (and here).
How did we come to this place? Well, it took the joint efforts of both parties and a country that has been lured into a dangerous passivity by years of war rhetoric. We now appear to define ourselves by our lifestyle rather than our rights. Being American appears to be treated as conclusory and self-evident — untethered to our defining principles. So in comes to this. The loss of the most basic right of citizens met not by applause but, even worse, a collective yawn.
Here is the Senate bill: BILLS-112s1867pcs