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Indefinite Detention of Citizens: A Response To Senator Carl Levin

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

234 thoughts on “Indefinite Detention of Citizens: A Response To Senator Carl Levin”

  2. “We have a delightful little salon and we love these debates.”

    Yes, sir. In the words of the immortal Jed Clampett, “It’s a real crowd pleaser.”

  3. Mike S.,

    I’m so glad you addressed the “dichotomy” within my two posts as kindly as you did. I wondered if I would have difficulty defending the premise of my second post from that of my first as I felt like I was falling into a mild dissociative state by suggesting the second after supporting the first.

    Congress does that to me all the time … okay, now I see myself falling into a mild form of transference so it’s probably best to leave the subject of my mental health for another day.

    Seriously, I see no ” traitors … charlatans seeking to squelch our freedom” (mespo) but also there seems to be no real reason for the statute to exist in the first place. So why this big push from the Administration … because charlatans want to take our freedom or, perhaps, is it to give additional cover to those within certain agencies who, as in the torture arena, violated laws during a previous Administration and are demanding increased protection in order to thwart future prosecutions?

    Well that’s the thought that came to me after I returned from leading my troops against the Spanish Armada … “I know I have the body of a weak and feeble woman, but I have the heart and stomach of a King …”

  4. Mesop,

    Thank you for your warm welcome. Black & White brings out qualities that are unseen in panaramoric color.

    The choice of finish in photography is because matte last longer and does not show cracking or shading as quickly.

  7. Mike, thanks for fleshing out your point.

    “By demonizing him people miss the point of what is going on” If by this you mean it’s a distraction from the larger issue of underlying control of the context (forces, information, money, etc) of our legislative branch I agree. But I would go further and say that the appeal to patriotism is as much a tactic as a conviction.

    And you say “Unless you understand that this is being done with the best intentions to ‘protect America’ in most of these peoples minds, you can’t effect change.” And further note ” The issue then is how do you convince people, who believe they are acting in our best interests, using bogus inside information to harm our Constitution.

    Ok I (the corporate I) understand this. And I am more than willing to convince people, but we are talking about an area that is inherently emotional and, in my very humble opinion for those who might be also reading, not susceptible to convincing in the ordinary ways available.

    You have stated the situation quite well. But I can’t accept all the implications including that Levin may well be the most stupid of men, or the most arrogant. That is, if Levin is indeed brainwashed in his bubble, appeals to logic and reason are pretty useless. His actions are nefarious. That he may be a brainwashed but cuddly and patriotic teddy bear doesn’t.change a thing. Only that now we “understand”; poor Carl, he can’t help himself.

    Or something like that.

  8. Mespo,

    I am sorry, that was not directed to you but to someone who speaks out both sides of their pie hole. I would also appreciate an 8X10 matte finish photo, I am stunned by black and white photography. B&W photography cannot ever be replaced or replicated.

    I am here because of a friend of mine Catherine. She and some others spoke of this site and I decided to look for myself. It was humorous, as I was sitting at a place, that I go quite often, and I heard a woman speak very unkindly about another person we know in common and I wanted to find out for myself before I made a decision who is crazier. I am still trying to figure out the people on here. I have come to believe that some people are not what they appear in public.

    It has been very interesting so far.

  9. I agree MIke S. The question about the real necessity for these measures is open to debate. The motives of those in favor of them are not in my judgment. Demonizing these legislators will do nothing to convince them of the error of their ways. That takes persuasion or an election.

  11. Having written the above I must explain why it doesn’t clash with Mespo’s viewpoint. If you look at the problem as a bunch of evil people trying to oppress us, you miss the point. This is being done to “save” us from terrorism. Most of the foreign policy establishment honestly believes we are in danger. They are taking actions they see as realistic. This is not evil, it is ignorance bred from more than a half Century of believing that America is being attacked from within and without. That these beliefs neatly coincide with many “experts” self interest, only reinforces their resolve. From their skewed (and incorrect) perspective we must take extraordinary measures to combat this threat. By overreacting and demonizing you just create greater barriers to overcome. Bush was finally defeated, but the scars of 9/11 were still raw and the majority of the people still felt in terror of the outside world. Politicians basically do what is expedient to get them re-elected. You’ve got to change the America’s terrorized mindset, before you can end this phony “War on Terror”. Certainly sound the alarm against Constitutional encroachments, fright them with all means possible, but we need to stop shouting the sky is falling and just expanding the ripples of fear. The real thing to fear is the influence of money in politics and the growing economic inequality of our citizenry.

  12. Bob,Esq:

    “That you’ve convinced (deluded?) yourself that Franklin would agree with you here is simply amusing.”

    ******************

    I have no idea if he would agree with me, but I feel certain he wouldn’t leap to the conclusion that our leaders are in insidous conspiracy against our freedoms with no more evidence than this.

  13. Mike A:

    I certainly agree legislative history is only useful if the language is unclear, but how then does one conclude that language which specifies that nothing in the Bill affects“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” means the abrogation of SCOTUS’ rulings in Rasul, Hamdi, and Hamdan?

  14. “I’m sorry, if that’s the point, what’s the point?”

    DonS,

    I come not to praise these policies but to bury them. To stop this crap you have to understand why supposedly good men like Levin would vote for it in the first place. By demonizing him people miss the point of what is going on. I think we can agree that WWII was perhaps the most justifiable war in history. However, what it did was school the Corporatists who ran this country. It schooled them by showing how much money could be made by war, or the threat of war. The OSS which morphed into the CIA and enjoyed its power as America’s first real intelligence Agency. The Conservatives found a new bogeyman in the USSR.
    This was not to say that Stalin wasn’t every bit as bad as Hitler, he was, but that the USSR and Communism was never the threat they made it out to be. We were the strongest nation in the world, with the strongest military.

    Having the Communist threat though, was enough of a bogeyman that millions and billions went into defense and the defense contractors, the MI Complex, made out so well that they saw it was in their best interests to keep the scare going and the dollars rolling in. The problem is that they did such a good job of it that as time passed everybody started to believe it was true. As new legislators came on board they found themselves briefed by “experts” telling them “secrets” about the danger that had to be hidden from view. That most of the “secrets” were bogus and most of the threats ephemeral became besides the point. Everyone started to believe them, even the “experts” that made them up.

    When the Cuban missile crisis came around almost all of JFK’s experts and the Military were advising attacking Cuba outright. JFK and RFK, who’s father had been a government insider for years, knew that invading Cuba, or shooting missiles might start WWIII and found a way around it, scary but reducing the threat of nuclear war. The patriots, with egg on their faces, began to feel JFK was a threat to the country’s security. Lo and behold, before he could further question the premises behind our intercession in Viet Nam further, JFK was history. That the so-called “patriot experts” also were aligned with the MI Complex was just a “fortuitous” coincidence. They were all doing what was best for the country. And so it went

    This gets me to Carl Levin and why he would support such a bill. He actually believes the “inside crap” fed to him by the DOD, DHS, NSA and CIA. Terror is everywhere, 9/11 can happen again. Rights must be abridged in the name of national security. Unless you understand that this is being done with the best intentions to “protect America” in most of these peoples minds, you can’t effect change.

    Are they wrong? Absolutely? Do we abrogate rights in the service of safety from terrorism? No way, because terrorism isn’t the threat it’s made out to be.
    The issue then is how do you convince people, who believe they are acting in our best interests, using bogus inside information to harm our Constitution. It puts a different perspective on the task. The job is to turn our Country away from the false cold war memes, stop the macho bullshit that characterizes our foreign policy and make this Country into what we’ve always pretended it to be.
    To win the game you need to first understand the rules and their parameters.

  15. Bob,Esq:

    I didn’t evade JT’s arguments. I rejected them as unsupported by the plain language of the BIll. JT dismissed the Bill’s language guaranteeing the status quo in terms of the current legal protections for detainees and I disagreed that a court considering the constitutionality of the legislation would so easily do so or would backtrack reading the Bill as a legislative mandate to do so. JT thought the senators supporting the Bill were guilty of nonfeasance of their duties and I reject that argument as unsupported by the record of genuine debate over the measure and its potential excesses. JT dismisses Levin’s explanation of the intent and operation of the Bill, and I accept it since there is no evidence to the contrary I can see, merely conjecture and criticism from those who find it not to their liking. Levin’s position is a reasonable one and, contrary to your assertions, he is the most knowledgeable person in the country on matters of national security. I would think his personal credibility would add to that expertise but since you want to make that “illogical” I would submit that by experience and access to information alone he is the most knowledgeable of anyone who has commented on both the the necessity for this legislation and its operation.

    I’m still waiting for the explanation you see to Levin’s actions if you are contending that not all the logical possibilities have been explored in my comment. Maybe he’s mentally deranged. I did leave that one out.

    As I said before, you’re whining over the last race. That horse is already in the barn.

  16. Mike Appleton,

    Would you agree that JT’s analysis above is in fact an analysis of the legislative history?

    Would you also agree that Mespo is offering an ‘alternative’ legislative history that no court would ever take seriously for reasons which I’ve already stated?

    On a side note, I concur with Homer Simpson in saying…

    “Your ideas are intriguing to me and I wish to subscribe to your newsletter.”

  17. “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.”

    You cannot have political freedom without economic freedom. If you can take 50% of a persons income, why cant you detain them indefinitely? It all stems from the same collectivist/statist ideas. The individual is nothing and the state is everything.

  18. Mespo: “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.”

    By offering the false dilemma you avoid the need to address the concerns expressed by JT above; i.e. that Levin is relying on “standard cover language for Senators who knew that they would be criticized for voting for the law.” — JT

    Mespo: “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.

    It is a fallacious appeal to authority when you use appeal to ridicule to imply that Levin’s arguments MUST be true based upon your portrayal of his character; lauding the man’s credentials is not a substitute for addressing the arguments made by the man. All you’re doing is dismissing criticism (e.g. the concerns addressed by JT above) by appealing to the man’s accomplishments.

    Mespo: “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.”

    To be precise, you appealed to ridicule in support of your appeal to Levin’s accomplishments and your false dilemma that Levin is either a liar or a fool.

    “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.”

    Why? Because it would be as ‘ridiculous’ as suggesting that all the senators who supported the bill are “liars and megalomaniacs bent on our enslavement.”

    Mespo: “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.”

    I’m sorry, but by evading all of JT’s arguments using the fallacies described above, what used to be “writer’s craft” falls into the gutter categories of thought terminating cliché and historian’s fallacy; part and parcel of a pattern if you will. That you’ve convinced (deluded?) yourself that Franklin would agree with you here is simply amusing.

  19. Mike,

    “The human mind is such that it ca find rationales for truly bad behavior. ”

    So is that what you think is going on here? The go-easy-on-NDAA-group is saying, yeah it’s bad, buy ya gotta understand, these are real patriots? I’m sorry, if that’s the point, what’s the point?

    I can fully comprehend that negative behavior — ok, when compared to some potentially criticizeable standard, as all standards can be criticized — can be thought not negative, even beneficial, by it’s proponents. That’s almost a tautology. It’s certain verifiable in elementary psychological terms even if, where extreme and pathological, it’s called delusion.

    So between the probably delusional patriotism of a Hitler to the questionably “sane” fixations of a Cheney to the what, gullible but misguided lapses of a Levin, there is a seemingly common thread of patriotism.

    It’s a pretty elementary observation. But it doesn’t even touch questions of morality and ethics, even situational ethics. And simply because those sorts of questions are always dismissable because in fact there is no actual authority and we are all opining doesn’t exonerate the effects from being evaluated in a real world context.

    I think this flip flopping between the theoretical frame of behavioral psychology and the practical world of political effect is not useful. I’m not particularly interested in rationalizing behavior or legislation that has potentially disastrous effects on Constitutional rights on the possibility that it has some helpful ones which, truth be told, and already admitted, already exist and are claimed by the powers that be.

    Saying the “left” things in “stark terms” doesn’t help. these issues are neither left nor right. IMO, politics is the problem, not the explanation.

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