A Response To Senator Carl Levin: Part II

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.

114 thoughts on “A Response To Senator Carl Levin: Part II”

  1. Peter Sherinian
    It does not matter what Mister Levin thinks, even if he is the author of the bill, it only matters what the President thinks. Mister Levin is not the President, he does not have to do the dirty work. The President is the one who has to figure out this law and follow it.

  2. Jill,

    Would you please detail how Obama could have closed Gitmo on day one? What would he have done with the prisoners? If moved stateside, where would they go? Would they go to one state or many states? What states had adequate facilities? Would such moves require state cooperation? Would some go to home countries? What other countries would agree to accept some prisoners? How would it have been financed?

    My point…..it’s complicated. And most people would find it responsible and prudent to understand that it would take a year to close Gitmo. Wasn’t that the Executive Order? Unfortunately, he did not have a year before the country was convinced that we couldn’t possibly move the prisoners to the US. And that sort of shot down asking other countries to take them in.

  3. Levin and the Executive Branch are playing with fire.
    Another in a long series of shameful disgraceful actions: Korematsu, the Cherokee Trail of Tears, Tuskegee syphillis experimentation, cointellpro, Guantanamo, Salvador Allende …
    How many Medals of Freedom will future presidents have to distribute to make up for this?

  4. “The government has filed its opposition to cert in the case of Al Madhwani v. Obama–a Guantanamo habeas case. Al Madhwani’s cert petition seeks review of this DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan’s earlier opinion. The government’s argument is interesting because it explicitly invokes the new language in the NDAA”

    http://www.lawfareblog.com/2012/01/al-madhwani-cert-opposition-filed/

  5. Jill,
    I said it was a good idea.
    And I write to Obama often, through the official WH channel. He hasn’t replied yet. Yes, my missives are mostly castigations based on civil rights deterioration. That is the most important of all to me, who heard the voice of McCarthy, as I’ve written.

  6. S.M. and idealist,

    You are both very silly! You still misstate what I’m saying so I’ll just repeat it! I also love how you both feel calling Republicans the source of all evil is acceptable, godly and true!!! I don’t believe that about Obama or Republicans but you’ve certainly reserved your own right to say that about Republicans. That’s called hypocrisy!

    Still, I would recommend the following to all. It’s my original post. Interestingly it speaks equally to Obama and Congress, both Republicans and Democrats.

    This law does not go into effect until March. Can you imagine if people, left and right, called their Congress person and the president saying: I will never support you with time, money or words of praise unless you immediately reverse this law not only with regards to American citizens but concerning any person?

    If Levin is this nervous because one person, JT, is writing the truth about what he did, imagine what a whole group of people could do! We need to use the power we do have.

    Do not grovel before the powerful because they will take that as a greenlight to do anything.

  7. SwM and Jill,

    I just figured Jill out, you know…….her fixation.

    Well, it is the jilted lover syndrome, bitter and never forgetting or forgiving.
    She’ll even go piss on his grave, if not kill him outright.
    In this case, she fell in love with his BS, and then found out, as Michelle said: “The girls think he smells bad. ”
    His armor tarnished quickly in the toxic fumes of the Beltway.

    Me, yeah, disappointed, sure. But I prefer sanity to RWA leaders.

  8. Why is that wrong? This is about Obama and your post was about Obama. It’s so odd that you are allowed to speak of him but I am not! You Obama supporters sure don’t like any criticism of your guy!!! 🙂

    Still, I would recommend the following to all. It’s my original post. Interestingly it speaks equally to Obama and Congress.

    This law does not go into effect until March. Can you imagine if people, left and right, called their Congress person and the president saying: I will never support you with time, money or words of praise unless you immediately reverse this law not only with regards to American citizens but concerning any person?

    If Levin is this nervous because one person, JT, is writing the truth about what he did, imagine what a whole group of people could do! We need to use the power we do have.

    Do not grovel before the powerful because they will take that as a greenlight to do anything.

  9. Call them all! What do you have to lose but some time! Be bold!

    BTW,

    You do know that Obama could have closed Gitmo, just as he promised, all by himself? The idea that Congress is the one holding back Obama from doing so, is a piece of propaganda floated by the administration to keep his supporters in line. He said he’d do that his first days in office. He didn’t do that. Instead he increased the prison in Afghanistan and just gave another contract to enlarge that facility.

    That’s exactly like his many other lies, lies such as he couldn’t get single payer when in fact he was the guy who took it off the table. We must be careful not to mislead people about what Obama is really doing.

  10. That’s great! Why not do it then! The president likes the bill also, he did sign it, so I would call both your congress people and him.

  11. Jill, My congress people are hard right republicans, and they like the bill. They probably don’t think it goes far enough. I can contact the president’s office though.

  12. S.M.,

    Please reread my post. I will repeat it for you since you didn’t get it the first time!

    This law does not go into effect until March. Can you imagine if people, left and right, called their Congress person and the president saying: I will never support you with time, money or words of praise unless you immediately reverse this law not only with regards to American citizens but concerning any person?

    If Levin is this nervous because one person, JT, is writing the truth about what he did, imagine what a whole group of people could do! We need to use the power we do have.

    Do not grovel before the powerful because they will take that as a greenlight to do anything.

  13. Levin is not up for re-election. If the republicans take over the Senate as they are predicted to do, “bomb iran” John McCain as the ranking republican would become chair. Don’t think Levin is scared just concerned about his reputation. Be careful what you wish for.

  14. This law does not go into effect until March. Can you imagine if people, left and right, called their Congress person and the president saying: I will never support you with time, money or words of praise unless you immediately reverse this law not only with regards to American citizens but concerning any person?

    If Levin is this nervous because one person, JT, is writing the truth about what he did, imagine what a whole group of people could do! We need to use the power we do have.

    Do not grovel before the powerful because they will take that as a greenlight to do anything.

  15. See my comment above re the American Thinker article–does no one notice the unavoidable fact that both Hamdi and Awlaki were dual citizens because of the “nonsense” (the adjective used by Judge Posner) of the “birthright citizenship” practice?

    NDAA and the Expatriation Act were both sold with reasoning that pointed to both of those cases. What do they have in common?

    Again–my opinion is that instead of laws designed to strip citizenship or its rights–why is there no discussion on granting citizenship in the first place? Birthright citizenship creates dual citizens. Do you think Hamdi or Awlaki, if not automatically granted US citizenship at birth, would have been eligible to naturalize? Naturalized citizens are required to formally renounce past foreign citizenships, born dual citizens are not. Stanley Renshon has estimated there are at least 40 million dual citizens in the US. How many because of birthright citizenship? What does that mean to our national security? Imagine how that could play out in a time of real war.

    But instead of dealing with those issues, to deal with the rare instances like Hamdi, laws are created that endanger the rights of citizenship of all of us…

    http://www.americanthinker.com/2012/01/citizenship_easy_come_easy_goes.html

  16. Oh wait. Once the ‘Enemy Expatriation Act’ is passed we’ll have to wait for an actual case before we can be certain the draconian words and intent are indeed draconian.

    If you’ve got standing, a lawyer and, maybe, even an actual civilian court system . . .

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