After my recent column on “Ten Reasons The U.S. Is No Longer The Land Of The Free,” I ran a response to claims made by Senator Carl Levin (D., Mich.) who was the main sponsor of the legislation including the indefinite detention provisions. Levin has now run a letter to the editor in response to my column that I believe is highly misleading and leaves readers with a false impression of both the law and my column.
Here is letter by Sen. Levin this morning:
In his Jan. 15 Outlook commentary, “Ten reasons we’re no longer the land of the free,” Jonathan Turley mischaracterized a provision of the National Defense Authorization Act for 2012 that reaffirms the authority of the military to detain individuals who join al-Qaeda, the Taliban and associated forces, and who attack the United States.
Mr. Turley disputed the Obama administration, which said that, with regard to U.S. citizens who fall in that category, “this provision only codified existing law,” i.e., it does not add new law to that issue. But Mr. Turley omitted the language in the act itself, which expressly states that “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.”
Carl Levin, Washington
The writer, a Democrat from Michigan, is chairman of the Senate Armed Services Committee.
There are a number of problems with this objection. First, the column that was printed noted that “While Sen. Carl Levin insisted the bill followed existing law “whatever the law is,” the Senate specifically rejected an amendment that would exempt citizens and the Administration has opposed efforts to challenge such authority in federal court.”
Second, the language cited by Levin has been ridiculed by civil libertarians as meaningless rhetoric designed to give members political cover after various members denounced the legislation as allowing indefinite detention of citizens. Without repeating the prior analysis, Levin (who assures that the law will be followed “whatever it is”) personally noted that the Administration demanded that there be no exception for citizens from indefinite detention. 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 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. Moreover, 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.
Most importantly, 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.
The only thing more disturbing than the provision itself is the effort of members to avoid responsibility for the provision — arguing that the civil liberties community and a wide variety of experts (as well as dozens of members of Congress) simply did not read the bill. The power, he suggests, was not given to the President despite the President’s assurance that he will not use it.
Notably, the earlier version of the column did not quote Levin on this point. I added the language before it went to print because Levin donors sent me a fax sent out by his office advancing this argument. The entire premise of both the early version and published version is that the effort to protect citizens was defeated by the Senate.
As I mentioned earlier, I often agree with Levin. However, the letter continues an effort to suggest to readers that this question is expressly answered in the bill. The clear effort is to dismiss the view of civil libertarians and members as ill-informed and portray the concern over civil liberties as baseless. I am not sure what is worse: exposing citizens to indefinite detention or misleading citizens that they need not be concerned because the Congress has their back.
Mespo, at the risk of once again triggering your condescension, : ) , and at the further risk of characterizing your own efforts as rhetorical, I think you have shifted ground from your previous critique of this issue. To wit, in the Levin I thread, you pretty much came down on the side of agreeing with Levin’s explanations and interpretations, especially because he was “in the room”, and against Turley’s reading, interpretations and concerns. Reading between the lines of your position stated there, it seems that concern for security trumped a reading which would favor preservation of the civil liberties in question.
Now you are saying it will take an actual case to render interpretation. This is almost a tautology, and seems to relieve you of the previous endorsement of Levin’s position.
Further you reduce the real and substantive debate to one that highlights personal accusation and character assassination which in my view further demeans the importance of the issues, though I expect you will say such observation actual reinforces the importance. We can agree to disagree on that one.
Maybe, as we have noted before , “parsing is what we do”. I find Turley’s exposing the meaningless and internally inconsistent language of the law (possibly intentional language and explanation to cover some butts) convincing. You did not, although you may be revising your position; I can’t tell. And while I’m sure both Turley and Levin are honorable men, one is a politician who regardless reputation as a “liberal”, is as susceptible to opting for a little less liberty for the chimera of a little more security in these post-9/11 years. There isn’t a very effective “terrorist lobby” to complain, nor do those who speak up for civil rights, within that context, have an easy time making the argument.
anon nurse,
I usually agree with mespo or defer to the wisdom he expounds upon…. This case I clearly disagree with him…Just like with William Brennan, the former best Constitutional Sct Judge in my opinion.. I disagreed with some decisions of his as well….
People have certain biases…If I try and understand mespo position….he states that there are protections in the bill, but for the bad conduct of the actors in the first place…they would never be in headlights or in the purview of law enforcement…. some basic liberties need to be erased because we are fighting a battle with some folks and we do not know who they are…..
I agree with you that the finer points needed to be made before the bill was signed into law….
That is why I think that the present administration entering into the camera case erasure..Where the cops erased the phone….(I think it was that one)..will set bad precedent if they are successful. in defending the civil liberties in that one…in the next breath they are taking away the same civil liberties that they fought for in the other case…..which makes no logical sense to me….If they take a hit….the arguments are still there against them…..
It reminds me of the cops selling the dope….and giving people money to by the dope, and then turning around and arresting the one selling it for distribution and busting the other one for possession….Were they entrapped? Not according to the latest court ruling out of the 6th Circuit….
Second, we will accomplish very little substantively by arguing about the benefits or possible dire consequences of the law absent a real case in controversy with a claim of actual harm due to some governmental entity’s interpretation of the language at issue. -mespo
Who among us would like to be the test case — the real case? Who among us would like to make “a claim of actual harm?” Who among us will agree to actually be harmed, as harm is likely to ensue?
There was ample opportunity to rid the bill of ambiguity before it was signed into law.
“However, the letter continues an effort to suggest to readers that this question is expressly answered in the bill. The clear effort is to dismiss the view of civil libertarians and members as ill-informed and portray the concern over civil liberties as baseless. I am not sure what is worse: exposing citizens to indefinite detention or misleading citizens that they need not be concerned because the Congress has their back.”
–Jonathan Turley
And this is why many of us keep coming back to this blog. Thank you, once again, Professor Turley, for your clear vision — for seeing and articulating what others can’t or won’t.
mespo,
“Second, we will accomplish very little substantively by arguing about the benefits or possible dire consequences of the law absent a real case in controversy with a claim of actual harm due to some governmental entity’s interpretation of the language at issue.”
*****
If a person being detained has no right to legal counsel, how will a real case controversy be brought to light?
I think this rhetorical one-upsmanship is beneath both advocates. There are legitimate and reason-based differences of opinion about the import of the specified provisions of the NDAA which have been explored ad nauseum here and elsewhere. Levin seems over the top in asserting a willful attempt by JT to “mischaracterize” the provision and thus implicitly mislead his readers. He does so by pointing out our host’s supposed omission (in his opinion) of language purporting to provide that the law inhibiting unjust detention is unchanged. JT seems equally vulnerable to criticism for asserting that Levin is purposefully “misleading citizens” about the level of rightful concern based on Levin’s interpretation of the language in question which JT deems “meaningless.”
Three facts remain unchallenged: First, the Bill is law as of 12/31/2011.. Second, we will accomplish very little substantively by arguing about the benefits or possible dire consequences of the law absent a real case in controversy with a claim of actual harm due to some governmental entity’s interpretation of the language at issue. Third, the good faith and spirit of public service implicit in each man’s argument is beyond question based on the character of each man as we know it to be.
Either the law is a direct threat to the Constitutional protections against detention without due process or it isn’t. Castigating either man — directly or by innuendo –for his opinion and calling into question either’s good faith will resolve this issue not one iota. It will, in fact, politicize and polarize the debate away from the legal question it truly involves. That is the debating style of those seek to assassinate the character of the opponent. And haven’t we already had enough of that style of “debate”?
I called Sherrod Brown’s office and asked why he was voting for the NDAA. I asked how this fit into our Constitution and why he believed the imprisonment without trial of ANY person was justified either legally or morally. The staff member I spoke with said specifically that Brown had voted to get American citizens exempted from the bill but that amendment had not passed. I then asked the question again as to why he was voting for the NDAA? The staff member said he was only taking constituents opinions and couldn’t tell me why.
Clearly, Brown knew American citizens would be unlawfully detained and d voted for the bill anyway, even after it was stripped of this specific exemption. ( I have yet to receive the written answer to my questions posed above, that I was promised by the staff member.)
The amount of absolute BS blasted into the minds of our citizens is farcical. Congress and the president knew exactly what they were doing. What they did was heinous and they should all be kicked out of office for violating the Constitution.
I take heart that Levin is nervous enough to keep lying about what he did. That shows citizens can still have an effect on Congress. We should take that power and use it.
Thanks for the link, Swarthmore mom. Chesney has an interesting background… (and he’s “good looking”, too… 😉 )
The entire Senate, except those who voted against the provision, are on my excrement list, especially Levin.
They are weak when it comes to taking their oath to uphold the constitution seriously, but they are strong on letting fascism sleaze its ugly way into place.
Mike S got their number in his recent Authoritarians post.
Those senators are a pathetic, poor excuse for an American Senate.
The polls are of their own putrid making.
It is difficult to argue with the Morally Corrupt…
If you think about it….maybe this is why the Sct stated what it did in the GPS case…..Because they already have the ability to do it under other agency’s and laws…..Just saying….
This is one American who is sick of the ambiguity and doublespeak.
Vladeck states: “But until and unless we settle the clear statement issue, this conversation is just going to keep going in circles, and anyone who thinks the NDAA resolves it one way or the other is selling something.”
Going Around in Circles
Billy Preston With Eric Clapton. 2001.
http://www.youtube.com/watch?v=6NYIfUY-Gvs
(Correction to previous comment: “This is the Wittes and Chesney summary which Levin highlights:”)
http://www.utexas.edu/law/faculty/rmc2289/ I know someone in Chesney’s class this semester. He is quite the good looking young professor.
I heard that this old fart is 80. If that is true then he was alive in 1933 when President von Hindenburg passed the Reichstag Fire Decree which was the dismantling of civil and criminal rights in Germany following the Reichstag fire. The Reichstag was the German Parliament building in Berlin and was burned by Hermann Goerring and the Nazis blamed it on the Communists.
This Levin guy has to First, Lose the glasses sliding off the fat nose; Second, be subjected to the provisions of the bill being posted on the doors of every school in his State. Third, be ridiculed daily as a fat, dumb, old fart who doesnt know how to read and needs to be tried for war crimes.
We need to draft an indictment of the war criminals.
This is the Wittes and Chesney summary to which Levin hightlights:
http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/
which links to the following:
The Problematic NDAA: On Clear Statements and Non-Battlefield Detention
by Steve Vladeck on December 13, 2011
http://www.lawfareblog.com/2011/12/the-problematic-ndaa-on-clear-statements-and-non-battlefield-detention/
Excerpt:
“One might also divine clear statement rules from some combination of the Fourth, Fifth, and Sixth Amendments, although my own inclination is that the statutory arguments are on firmer footing. But either way, the relevant point is that, although neither the Second Circuit’s analysis in Padilla nor the Fourth Circuit panel’s analysis in al-Marri are still good law, there’s no law in the other direction either.
And that’s why the NDAA is, in my view, so dangerous on this issue; supporters of virtually every position can claim that the NDAA, by preserving the status quo, preserves their view. It might be far safer for Congress to specify what the statutes already suggest–i.e., that status quo or no status quo, it takes a clear legislative statement to hold individuals picked up in non-battlefield situations without criminal charges. But until and unless we settle the clear statement issue, this conversation is just going to keep going in circles, and anyone who thinks the NDAA resolves it one way or the other is selling something.”
So, to repeat…
Vladeck states: “But until and unless we settle the clear statement issue, this conversation is just going to keep going in circles, and anyone who thinks the NDAA resolves it one way or the other is selling something.”
1) If one goes to Levin’s senate.gov page, he spells out the “common inaccurate statements about the legislation”:
http://levin.senate.gov/newsroom/press/release/the-detainee-provisions-in-the-national-defense-authorization-act-for-fy-2012
— 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.
2) And then he goes on to say the following:
“Thanks for taking the time to learn more about this important issue. If you’re still curious about detention policy and the National Defense Authorization Act, you might read the work of two respected legal experts who have written extensively on these provisions. While they don’t always agree with the legislation, Benjamin Wittes and Robert Chesney have written a useful summary that counters what they call the “sheer, unadulterated nonsense zipping around the internet” about the detainee provisions. ”
3) He notes that Wittes and Chesney have put together a “useful summary”, but the summary seems to point to the ambiguity that Levin is disputing. (see my next comment)
Perhaps Senator Levin would like to eliminate the Wittes and Chesney link from his senate.gov page… If not, he’s talking out of both sides of his mouth, it would seem.
Sen. Levin has explained his Interpretation of the bill,but has failed to highlight the need for the bill,which could apply to him should he leave office. How far will they go to engage in perpetual war?
“You on the media side trying to make people think you are actually doing something to help and change things”
Educating people on the steady erosion of their Constitutional rights is doing something. The first step in fixing any problem is knowing of the problem’s existence. Many Americans simply don’t know their rights much less when their rights are being attacked.
Conflate much?
Ok, Gene. And just what give the current version of the Constitution its proof of claim and validity of law? When one finally wakes up to the brilliant hoax pulled on the minds of the people, one has to realize the current version of the Constitution has no rights intended for the free, only citizens or slaves of the presumed authority THEY assume they have. You will NEVER get THEM to produce Their proof of claim, as there is none.
“As I mentioned earlier, I often agree with Levin.” proves enough to me. You are just as guilty as Levin for supporting the impostor pretend government, the so called UNITED STATES THAT IS NOTHING MORE THAN AN UNLAWFUL BANKRUPT CORPORATION FUNCTIONING OUTSIDE EVEN ITS OWN LAWS FOR ITSELF that you both obviously work for. You on the media side trying to make people think you are actually doing something to help and change things, and him on the inside tightening the noose you both have around the peoples neck. ANATHEMA IMPOSTER
What Mr Levin clearly doesn’t grasp is how fundamentally wrong NDAA is.
Another loss of civil liberties and another loss of integrity for the US and it’s citizens perpetrated through a delusional “War on Terror” by neocons.
Mr Levin has “occupied” the office too long. These “lifers” need some term limits as it appears “too long at the trough” has consequences.
When they (the lifers) demonstrate that they can no longer distinguish between right & wrong it’s time for them to go.
Mark Twain: ‘Politicians are like diapers; they need to be changed often and for the same reason.’
“I am not sure what is worse: exposing citizens to indefinite detention or misleading citizens that they need not be concerned because the Congress has their back.”
I would add to that list “that Sen.
LevinPinochet has forgotten that some Americans know how to read”.But then again, I get really angry when some Washington weasel votes to blatantly piss on our civil rights and then tries to tell us it is raining.