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.
Have you ever seen a shell-game run at a county fair? Well, the final phases of NDAA enactment reminds me of that game.
As for the “justice is just” (pejorative?) Mespo 727272; I wonder what he would do if he was confined at a extraordinary renditiion site.
According to some, the Patriot Act consists solely of short revisions of the wording of hundreds of statutes. No wonder, Levin says he doesn’t know.
Only the crafters of the act might possibly.
When an elected member of Congress be he or she a Senator or a member of the House introduces and or votes for a bll that so clearly and unequivocally violates the Constition and prohibits access to the courts so that the law will never be reviewed, that person has violated his oath of office. As an American citizen I can and I will question the good will of those who voted for this bill. As a lawyer, I disagree with arguments that suggest that this law is anything less than an abridgement of the right to a jury trial before imprisonment. We are living in dark days indeed when Carl Levin is a staunch defender of such a law.
I thank J. Turley for his spirited defense of the Constution.
Last sentence: . . . law and justice . . .
Mespo, entirely reasonable from your point of view. Thanks.
The jurisprudential niceties of statutory construction are one thing. The sausage making of actual legislation may be quite another, although formal and informal commentary on the process might reveal that each clause, sentence, or word does indeed have a meaning, and not necessarily complimentary to it’s originator.
Relying on the courts as the last bulwark against Congress exceeding Constitutional limits to the point of threatening fundamental civil rights is is the rallying cry of those who believe in the soundness of our system. Admirers of the system we call the American democracy say it has, over time, worked for over 200 years to produce, uh, Constitutional results!. Mostly I’m there.
And, no doubt, every chaotic era produces hand wringers who say the system is broken — and who can deny that Bush v. Gore, or Citizens United don’t portend the game being rigged, just to pick on the Sup Ct — and say the individuals who people our institutions aren’t living up to their oaths. I’m there, too.
So while your dispassionate view of the NDAA matter satisfies the requirements of a bloodless conformity to analytical lawyering, it rings hollow to me in this instance. The trend of increasing surveillance and short changing civil rights leaves me frightened, and mistrustful of government officials who all too easily seem to bend with the prevailing xenophobia. This is meant as no criticism of you personally — how could it be — but reminds me why I have shied away from the practice of law for a long time: the disconnect between law and just, IMO of course.
mespo,
“Current law provides for assistance of counsel and access to habeas relief via the courts. To deny that law or those rights would require an interpretation of the statute by who else? A court.”
My understanding was that under NDAA you have no right to counsel if you’re being indefinitely detained. Are you allowed to have any communication with family? If not–and if you aren’t allowed communication with anyone–how would anyone know what happened to you? Who would bring your case to court?
rafflaw:
Then you’re underpaid. 😀
Mespo,
My rate is pretty cheap! 🙂
AY:
Thank you for the undeserved comparison to Justice Brennan. I think reasonable folks like you and me can differ, but we need not question each others motives or good will in the process without some proof of such scienter. That is all I was trying to say in my inital comment.
rafflaw,
And I cut the part about the CIA, but the CIA’s operative has been “removed.” The damage is done, however, and the practices continue…
As Linda Sarsour told Amy Goodman this morning:
“There must be an independent investigation done about the CIA and NYPD collaboration, as well as everything that we’re seeing, this pattern of abuse by the NYPD. Not just about surveilling Muslims, what about the arrest of Occupy Wall Street protesters? The harassment of journalists? What about the “stop and frisk” of black and Latino males? Gun running? Drug planting? I mean, the entrapment of young Muslim men in these outrageous, you know, terrorism cases? I mean, it’s not just about the Muslim community. The NYPD is “no holds barred” right now.”
AY,
Regarding:
“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…” (in explaining mespo’s position, not your own)
This just isn’t true, of course… Good, decent, law-abiding people — good Americans — are being caught up in wicked snares, with no apparent way out… Even the innocent are getting caught in the headlights… as you already know… In some cases, if one gets on the wrong side of someone in law enforcement… well, I don’t need to spell it out… you get it…
——-
from today’s DemocracyNow interview (link above in earlier comment):
AMY GOODMAN: And the latest news, Linda, Wall Street Journal reporting a CIA operative’s unusual assignment inside the New York Police Department is being cut short. The agency’s inspector general opened an investigation after the Associated Press revealed how the NYPD spying operations put Muslim communities under scrutiny, many of those operations built in close collaboration with the CIA. The CIA was cleared of wrongdoing, but officials said the report criticized how the agency began its collaboration with city police. They say CIA oversight was haphazard when it sent in an operative to New York after the 2011 attacks.
LINDA SARSOUR: Interestingly enough, yes, the CIA did remove their operative from there. Originally, when that partnership started, it was never approved by the top CIA lawyer. But you say that the CIA says they found no wrongdoing. But who says that there was no wrongdoing? It was the CIA inspector general who did an investigation. And to tell the Muslim-American community, or any American, that the CIA did an inspection and investigation on the CIA? That, for me, is frivolous. I cannot do an investigation on myself and tell you that I did no wrongdoing. There must be an independent investigation done about the CIA and NYPD collaboration, as well as everything that we’re seeing, this pattern of abuse by the NYPD.
Not just about surveilling Muslims, what about the arrest of Occupy Wall Street protesters? The harassment of journalists? What about the “stop and frisk” of black and Latino males? Gun running? Drug planting? I mean, the entrapment of young Muslim men in these outrageous, you know, terrorism cases?
I mean, it’s not just about the Muslim community. The NYPD is “no holds barred” right now.
end of excerpt.
ekeyra:
“Good luck explaining your case to a lawyer ( IF they let you see one), after they’ve allowed you five hours of sleep over the last five months. Ask bradley manning.”
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I think Mannings lawyer, David Coombs, Esq. has a good understanding of the case and is quite competent to defend it:
http://www.armycourtmartialdefense.com/army-lawyer.html
Here’s Mr. Coombs account of a typical day for his client:
PFC Manning is currently being held in maximum custody. Since arriving at the Quantico Confinement Facility in July of 2010, he has been held under Prevention of Injury (POI) watch.
His cell is approximately six feet wide and twelve feet in length.
The cell has a bed, a drinking fountain, and a toilet.
The guards at the confinement facility are professional. At no time have they tried to bully, harass, or embarrass PFC Manning. Given the nature of their job, however, they do not engage in conversation with PFC Manning.
At 5:00 a.m. he is woken up (on weekends, he is allowed to sleep until 7:00 a.m.). Under the rules for the confinement facility, he is not allowed to sleep at anytime between 5:00 a.m. and 8:00 p.m. If he attempts to sleep during those hours, he will be made to sit up or stand by the guards.
He is allowed to watch television during the day. The television stations are limited to the basic local stations. His access to the television ranges from 1 to 3 hours on weekdays to 3 to 6 hours on weekends.
He cannot see other inmates from his cell. He can occasionally hear other inmates talk. Due to being a pretrial confinement facility, inmates rarely stay at the facility for any length of time. Currently, there are no other inmates near his cell.
From 7:00 p.m. to 9:20 p.m., he is given correspondence time. He is given access to a pen and paper. He is allowed to write letters to family, friends, and his attorneys.
Each night, during his correspondence time, he is allowed to take a 15 to 20 minute shower.
On weekends and holidays, he is allowed to have approved visitors see him from 12:00 to 3:00 p.m.
He is allowed to receive letters from those on his approved list and from his legal counsel. If he receives a letter from someone not on his approved list, he must sign a rejection form. The letter is then either returned to the sender or destroyed.
He is allowed to have any combination of up to 15 books or magazines. He must request the book or magazine by name. Once the book or magazine has been reviewed by the literary board at the confinement facility, and approved, he is allowed to have someone on his approved list send it to him. The person sending the book or magazine to him must do so through a publisher or an approved distributor such as Amazon. They are not allowed to mail the book or magazine directly to PFC Manning.”
Mespo,
Good luck explaining your case to a lawyer ( IF they let you see one), after they’ve allowed you five hours of sleep over the last five months. Ask bradley manning.
Elaine M:
“If a person being detained has no right to legal counsel, how will a real case controversy be brought to light?”
******************
Current law provides for assistance of counsel and access to habeas relief via the courts. To deny that law or those rights would require an interpretation of the statute by who else? A court.
DonS:
I’d hire rafflaw tomorrow to be my mouthpiece and he has it correct. I don’t think I shifted my position though and wanted to explain further. Here it is:
1. I do agree with Levin and the Administration about the most likely interpretation of the Bill. I therefore disagree with JT.
2. The Bill is now law and any attempt to argue its usefulness or effectiveness or its potential threats is meaningless in the absence of a precise set of facts upon which you can base a decision. It’s like arguing how many angels fit on the head of a pin without knowledge of the size of the angels or that of the pin head. It’s just useless discussion in the abstract.
3. The point of my comment was not to re-argue the merits but simply to say that tit-for-tat dueling letters does not enhance the debate between these nationally recognized pillars of the legal profession.
4. I think questioning someone’s good will, patriotism, or good sense is inappropropriate when the contest is a rational argument between men of well-known good character. To me it cheapens the issue.
5. I do not find any language in any bill passed into law by Congress “meaningless,” ineffectual, or put there for any purpose other than the plain meaning of those words. Cf.,We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon’s Abridgment, sect. 2, it was said that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ This rule has been repeated innumerable times.” Washington Market Co. v. Hoffman, [1879] USSC 96; 101 U.S. 112, [1879] USSC 96; , 25 L.Ed. 782 (1879).
Great link anon nurse. Add in the extra-legal CIA connection to the NYPD and it gets more depressing.
My previous comment was too long. Sorry…
The point is that innocent people are getting caught in the headlights of a system that is rife with abuse.
“Is this the America we want to keep?” -Thomas Drake
OT, but it’s all connected really… (Time to quote Pogo…)
January 27, 2012
NYPD Commissioner Ray Kelly Urged to Resign After Police Conceal Role in Anti-Muslim Documentary
http://www.democracynow.org/2012/1/27/nypd_commissioner_ray_kelly_urged_to
Amna Akbar spoke at Thursday’s protest. She is a supervising attorney at the CLEAR program, Creating Law Enforcement Accountability & Responsibility.
AMNA AKBAR: We’re standing together here today to call for Commissioner Kelly’s resignation, to call for the resignation of Paul Browne, to call on City Council to establish an independent community control and oversight mechanism, because we now know that the NYPD does not feel accountable to our communities. The NYPD functions in a very nontransparent way. That’s not right in a democracy, and it’s not right in this city. The NYPD must be held accountable. The NYPD must act transparently.
For many years now, there have been a number of revelations about the way that the NYPD is policing our communities. We have learned about the way that informants are surveilling and infiltrating our communities. We have learned about the demographics unit and the way that it’s literally creating maps of Muslims all around the city. We know that the NYPD was responsible in 2007 for the radicalization report that tied together aspects of Muslim identity with potential for future terrorism. And we know that the NYPD showed the film, the hateful propaganda, anti-Muslim film, The Third Jihad, to 1,500 officers during its training. Not only did the NYPD show this film to 1,500 officers, but Commissioner Kelly participated in its making.
….
LINDA SARSOUR: The film is absolutely outrageous. Any rational-minded person that watches it will say, “Wow! How did the New York Police Department, the largest police force in this country, supposedly the most credible, have access to this film?” And what’s most astonishing is that while the NYPD surveils our community and creates files on us and checks us and all this kind of intelligence, the fact that there was no due diligence on the part of the NYPD to check out who the Clarion Fund is and to look up—look at their history—you don’t even need to have intelligence; just go on Google and find out who these people are—and connecting the dots, and looking at, you know, someone like Sheldon Adelson, who like funded this film, is also funding Newt Gingrich. It’s all connected. And this Third Jihad is not a one-time, you know, just a film, and we’re all mad and offended. It’s not about being offended. It’s about the security of all New Yorkers. If one bad judgment like this is happening in the NYPD, only God knows what other films are being shown that we don’t have the names in order for us do a FOIA request on these films. It’s absolutely outrageous.
AMY GOODMAN: On the issue of—that Noel Leader raised, the retired New York police sergeant, about the overall targeting of the Muslim community, last year Democracy Now! spoke with Associated Press reporter Matt Apuzzo, who exposed how the New York police had secretly monitored mosques and Muslim communities after the September 11th attacks.
MATT APUZZO: They’re very aggressive at building informants. And, you know, they have a program that was known as the “Demographics Unit,” informally, inside the NYPD. The Demographics Unit, what they would do was they’d take ethnic officers out of the academy and drop them into ethnic neighborhoods, where they would basically be the eyes and the ears of the NYPD. They were undercover. They obviously didn’t work out of NYPD headquarters. They just were—hang out. And so, they’d kind of go to the bookstores and the libraries and the hookah bars and the clubs and the cafes, and just be the eyes and ears of the NYPD and listen for things that are suspicious.
AMY GOODMAN: You said they called for the names of all the Pakistani cab drivers in New York. They wanted the TLC—
MATT APUZZO: Yeah, that was—
AMY GOODMAN: —the taxi and limousine service—
MATT APUZZO: Yeah.
AMY GOODMAN: —to hand that over.
MATT APUZZO: Yeah, early on, you know, before these programs got going, I think there was just this real sense of urgency. There was all these threat streams coming in. There were—you know, the NYPD didn’t have any informants. And so, they kind of took some really ad hoc ways of trying to go about getting informants. And one was they asked the taxi cab commission just to give them a rundown of all of the Pakistani cab drivers, so they could look for maybe anybody who got it fraudulently. And then you could use that as leverage to help get yourself an informant.
And the other way is they looked and said, “Look, let’s just go and do—step up our traffic patrols in Pakistani neighborhoods. And if you’re running a red light or you’ve got a broken tail light or whatever, you know, we can use that as the means for a traffic stop and then see if there’s an outstanding warrant or if there’s anything we can use here, and then try to flip him and make him an informant, use that as leverage.” You know, they were—in some ways, they were kind of like acts of desperation.
AMY GOODMAN: This was from 9/11 right through until now. That was Matt Apuzzo, who exposed this for the Associated Press. Linda Sarsour, how has this affected your community? Talk about your demands to meet with the commissioner and also what happened at the interfaith breakfast, why the Arab leaders, Arab-American leaders, boycotted Mayor Bloomberg.
LINDA SARSOUR: Well, what Matt Apuzzo is talking about, this Demographics Unit, and sending, you know, undercover—but it’s actually beyond the undercover officers. We’re talking about NYPD informants. We’re talking about people who have trouble with the law, who break deals with the NYPD to come and surveil the everyday life of Muslims. We’re talking about just people praying at mosques, sitting at, you know, coffee shops. What this does is it creates paranoia in the community. It instills fear in people. You can’t trust anyone. Not only is there—becomes mistrust between us and law enforcement, which hinders the public safety of everyone, it also creates mistrust. You’re sitting at a mosque and you’re praying, and you don’t even know if the guy next to you is an informant. I mean, the NYPD’s main job, and the reason why our taxpayer dollar goes to them, is to make us all feel safe. And the Arab and Muslim communities are not safe in New York City.
And what we did was, is we want to continue to keep the story hot. Why? Because all New Yorkers should be outraged about this. This Demographic Unit is looking at 28 ancestries of interest, including Black Muslims. If that’s not religious and racial profiling, then I don’t know what that means. … and the interview continues…
rafflaw, I understand the role of the courts in settling questions. I also realize that the ink is barely dry on this piece of legislation so, to my mind, we are still very near the intersection of law and politics. That the bill is indeed signed does not quiet the ongoing issues involved, albeit they are highly politicized. Certainly Levin doesn’t seem to want to let it go. What’s a self respecting law professor to do?
I am less interested with whether mespo has shifted ground or not than I am concerned about the underlying principles and the political environment that has made this law possible.
DonS.,
I left out the word “he” in my first sentence.
DonS,
Mespo can defend himself, but hasn’t shifted his position. He is merely stating that since it has been signed into law, only a court will decide who is ultimately correct in their respective interpretations.