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
Gene H:
I certainly agree we can be done in by persons with the highest of motives.
“That’s why we all show up here — all the time. As they say, we like the action.”
To quote Austin Powers, “Yeah, baby!”
“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.
rafflaw:
“The discussion is getting interesting.”
***********************
That’s why we all show up here — all the time. As they say, we like the action.
Mespo,
Well done. The discussion is getting interesting.
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.
mespo,
You might want to consider making a longer version into a weekend post.
Goodnight, Blouise.
SwM,
Well, sit back and relax … enjoy a nice cup of tea … 😉
Blouise, It bounces off since many years ago I did a shame reduction workshop.
Blouise, lol. Even worse, I got attacked by an evangelical fundamentalist christian in real life.
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. 👿
mespo,
I patiently wait and appreciate your efforts.
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.
Do they each German at Cooley?
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.
My husband said, “You never did drink the kool aid”. He did I did not. Still voting for Obama not Rocky, Jill.
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.
So now that Obama has gutted the Constitution, is it a good thing?
Larken Rose,
I agree.
Mike A.
I also agree.
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. . . .”