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
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.
Not As Insane:
“You ought to try and speak plain English. No one understands what you are saying,…”
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Sorry, I’ll get those ESL flash cards out to you as soon as possible.
http://www.eslflashcards.com/
Dons:
“Mespo, you however, appear to be a sweetheart ; )
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Thanks, Don. I’ll send you a 8 x 10 glossy. 😀
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.
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.
I was wrong, it was Niemoeller, my cousin once removed from Wright City. Not Niehbur. Acter lieber.
Our lawyer potus is pushing a legal conundrum & a Constitutional crisis if we are lucky. His strategy for getting re-elected
I agree with Mespo, Blouise. You may have hit on something. Could we be expecting some breaking news soon??
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.
I’ll say it again, Levin [has shown himself] a hack.
Mespo, you however, appear to be a sweetheart ; )
All best.
— Don
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.
Mike A:
” It matters not a whit what the drafter may have intended, ..”
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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
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.
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.
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?
“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.
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…
“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.
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.
“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.
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.