In one of the greatest attacks on civil liberties in this country’s history, Democratic and Republican Senators voted yesterday to approve a measure as part of the $662 billion defense bill that would allow for the military to hold both citizens and non-citizens indefinitely without trial — even those arrested on U.S. soil. In a welcomed change, President Obama has committed his Administration to fighting the measure as inimical to the rule of law. The measure was pushed by Carl Levin (D – Michigan) and John McCain (R – Arizona). While some members of Congress like Ron Paul (R., Texas) have denounced the bill, the measure passed at the same time that Administration lawyers publicly declared that the military and intelligence agencies alone should decide whether a citizen should be killed without a charge or hearing (including killing citizens on U.S. soil) — a position supported by President Obama who has ordered the killing of U.S. citizens under his claim of inherent authority.
Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, tried to pass an amendment that would have limited it to suspects captured “abroad” — a measure that still raised constitutional and international law problems. However, even that modest amendment failed on a vote of 45 to 55. Here is the voting roster, which includes Democrats Begich (D-AK), Casey (D-PA), Levin (D-MI), Inouye (D-HI), Landrieu (D-LA), Manchin (D-WV), McCaskill (D-MO), Pryor (D-AR), as well as independent Lieberman (ID-CT). A watered down amendment was then passed 99-1 that left the matter (it would appear) to the Administration. The provision merely states that nothing in the provisions could be construed to alter Americans’ legal rights. Since the Senate clearly views citizens are not just subject to indefinite detention but even execution without a trial, the change offers nothing but rhetoric to hide the harsh reality.
Virtually all Democrats and Republicans voted to strip citizens of their rights in a vote of 93-7.
What is fascinating is the Senators insisted on passing the provision despite the fact that the Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all opposed it on national security and legal grounds. Nevertheless, people like McCaskill who are running for reelection want to prove that they are tough on terrorism by stripping citizens to the right to basic due process rights. The fact that the Democratic and Republican Senators took this step without even holding a hearing is a testament to the state of civil liberties in the United States.
It is unclear whether the President will have the integrity and courage to carry through on this pledge to veto this pernicious bill. For civil libertarians, we have reached our Alamo moment where the most basic principles of the rule of law are at stake. The Congress has long been indifferent if not hostile to civil liberties, but as discussed in an earlier column (and here), civil liberties has reached one of the lowest ebbs in both politics and policy in this country’s history. Such measures are now met with a gigantic and collective shrug from an indifferent populace.
The national debate has become positively otherworldly for civil libertarians. As the Senate set about rolling back civil liberties, Administration lawyers — CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson — publicly explained to an audience this week that the decision whether to kill a U.S. citizens anywhere and anytime must be left solely to the discretion of the military and intelligence branches. President Obama has supported this view and claims the right to kill any citizen on his unilateral and unchecked executive authority. I discussed this horrific policy in a prior column (and here).
How did we come to this place? Well, it took the joint efforts of both parties and a country that has been lured into a dangerous passivity by years of war rhetoric. We now appear to define ourselves by our lifestyle rather than our rights. Being American appears to be treated as conclusory and self-evident — untethered to our defining principles. So in comes to this. The loss of the most basic right of citizens met not by applause but, even worse, a collective yawn.
Here is the Senate bill: BILLS-112s1867pcs
Source: Newser
I think I have read this novel before. The next thing that happens is a deranged Dutch Communist named Marius van der Lubbe burns down the Capitol Building and the President suspends Congress and rules by decree until the danger is over.
Nal,
Thanks for the link. That was a damn good dissent!
Well said Oro.
Nal,
It is scary to think that Scalia is on the correct side of this issue! Disastrous bill and it should be vetoed. I am shocked that Levin would have voted for this piece of crap.
From David Kopel:
… it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power.
The whole purpose of acts of terrorism is to get a terrorized people to change not just their conduct but their core beliefs. It is psychological warfare in its most intense form.
Bin Laden’s victory represented by this odious bill’s abdication of American core values is nothing less than an unconditional surrender in the war against terrorism. The damage done by this bill is far worse than was done on 9-11.
Thanks to the Congress of the United States, Bin laden is destined to be revered as one of the greatest Arabs and Muslims of all time.
Allahu Akbar,indeed.
From a non-lawyer: Is this not clearly unconsitutional?
Why are Dems supporting this? Do they want a police state or are they just cowards?
From Justice Antonin Scalia’s dissent in the Hamdi case:
“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
George,
I agree with you. We clearly see this in action with the police state tactics towards OWS protesters. Of course, we have also seen this for a long time. Under Bush, Muslims were simply taken, tortured and thrown in the hole, end of story. The circle of “undesirables” that could be treated this way has expanded ever since that time.
The US govt. is baring its fangs in an increasingly open manner.
“constitution, the constitution, were for ought the wonderful constitution”
But for the fact that I know it is Living, I’d suggest that it is resting in peace.
http://blog.amnestyusa.org/waronterror/senates-disastrous-new-detention-bill/
Great piece.
I guess the social contract, at this point, is null and void.
constitution, the constitution, were for ought the wonderful constitution
Thank you Professor Turley for drawing scholarly attention to this matter.
Glenn Greenwald also takes this on in his column. In an update he writes: “UPDATE: Just to underscore what is — and is not — motivating the Obama administration’s objections to this bill, Sen. Levin has disclosed, as Dave Kopel documents, that “it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power,” on the ground it would unduly restrict the decision-making of Executive Branch officials. In other words, Obama officials wanted the flexibility to militarily detain even U.S. citizens if they were so inclined, and are angry that this
bill purports to limit their actions.”
I ‘m not certain why, but this vote hit me harder than Obama’s killing. As Greenwald points out, nothing about reality really changes with this vote. Obama has already claimed these powers for quite some time and he has acted on them, even murdering a 16 year old citizen. It’s really not possible to sink lower than that.
But there was something horrific about so many of those in the “representative” wing of the govt. selling out the American people. I just keep thinking how we become more like Nazi Germany every day. Each actions Hitler took was made “legal” by the “representatives” of ordinary Germans. This is exactly the case in the US today. Every depravity, every shredding of the law is being made “legal” one by one. This complete betrayal of this nation and its people hits me hard.
I also find myself enraged at the people of the US. Under the reign of Cheneybush, people remained largely silent as the secret govt. formed. Only civil libertarians and Democrats who objected to Bush as a personal matter spoke up. Once Obama came in, Democrats became the summer patriots. No illegality was too offensive for them now that one of their own was championing it. In this way, the secret govt. has become ratified into “law”. This left only the civil libertarians and a small few people of conscience in either major party to speak up.
The truth is, it is a case of “First they came…” And this will not stop until our citizens stop being summer patriots, stop excusing, stop going along with such horrific acts against other human beings.
It was a pretty good run, really, 200 years is not along time but there were some very good ones. You might want to argue if we ended with a bang(9-11) or a whimper(Credit Default Swaps) but the militarized oligarchy pretending to be a republic appears to have arrived and I don’t see a recognition of the arrival let alone an organized resistance to it.
http://motherjones.com/mojo/2011/12/senate-votes-prevent-indefinite-detention-americans
The Feinstein amendment failed also – 45 -55. It attracted three republican votes.
http://www.emptywheel.net/2011/11/29/udall-amendment-fails-37-61/ Udall amendment failed. Only two republicans voted for it.