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
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…
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.
ConLawCon,
Reinhold Niebuhr wrote The Serenity Prayer in 1934, as I understand it.
“Friedrich Gustav Emil Martin Niemöller (14 January 1892 – 6 March 1984) was a German anti-Nazi theologian[1] and Lutheran pastor. He is best known as the author of the poem “First they came…”.”
(http://en.wikipedia.org/wiki/Martin_Niem%C3%B6ller)
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.
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.
“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?
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…”
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.
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.
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.
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)
http://jonathanturley.org/2011/08/04/double-secret-probation/
http://www.aclu.org/blog/national-security/patriot-act-10-years-later
“Senator Wyden has stated, “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”” (from the ACLU link)
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.
“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….”
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…
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.
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.
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.
“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.
“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?