Yesterday the shameful dinosaurs of the Senate — hopelessly out of touch with reality, for the most part, and haunted by specters of their own making — approved, by 93 votes to 7, the passage of the National Defense Authorization Act (PDF), which contains a number of astonishingly alarming provisions — Sections 1031 and 1032, designed to make mandatory the indefinite military detention of terror suspects until the end of hostilities in a “war on terror” that seems to have no end (if they are identified as a member of al-Qaeda or an alleged affiliate, or have planned or carried out an attack on the United States), ending a long and entirely appropriate tradition of trying terror suspects in federal court for their alleged crimes, and Sections 1033 and 1034, which seek to prevent the closure of Guantánamo by imposing onerous restrictions on the release of prisoners, and banning the use of funds to purchase an alternative prison anywhere else. I have previously remarked on these depressing developments in articles in July and October, as they have had a horribly long period of gestation, in which no one with a grip on reality — and admiration for the law — has been able to wipe them out.
The four sections are connected, as cheerleaders for the mandatory military detention of terror suspects want them to be sent to Guantánamo, and have done, if I recall correctly, at least since Umar Farouk Abdulmutallab, the failed Christmas plane bomber in 2009, was arrested, read his Miranda rights, and interrogated by the FBI. Recently, Abdulmutallab, who told his interrogators all they wanted to know without being held in military custody — and, for that matter, without being tortured, which is what the hardcore cheerleaders for military detention also want — was tried and convicted in a federal court.
Hundreds of other terror suspects have been successfully prosecuted in federal court, throughout the Bush years, and under Obama, but supporters of military custody like to forget this, as it conflicts with their notions, held since the aftermath of 9/11 and the Bush administration’s horrendous flight from the law, that terrorists are warriors. Underpinning it all is the Authorization for Use of Military Force (AUMF), the founding document of the “war on terror,” passed the week after the 9/11 attacks. This authorizes the President to pursue anyone, anywhere who he thinks was involved in the 9/11 attacks, and it is a dreadfully open-ended excuse for endless war whose repeal I have long encouraged, but which some lawmakers have been itching to renew, even after the death of Osama bin Laden, and the obvious incentives for the winding-down of the ruinous, decade-long “war on terror.”
The fundamental opposition to the provision for the mandatory military custody of terror suspects
Depressingly, when it came to passing the Act, the world was treated to the unedifying spectacle of lawmakers arguing about whether the existing law — the AUMF, plus the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld that it authorizes detention until the end of hostilities — actually applies to Americans, and whether, on that basis, this new legislation does too. Their compromise was that it would authorize whatever already exists, which only made them look rather stupid, frankly. For evidence, check out this comment from Sen. Carl Levin, as mentioned in the New York Times. “We make clear that whatever the law is, it is unaffected by this language in our bill,” he said.
However, one of the even more extraordinary things about the Senate’s custody provisions is not only that they are a mangled, scrambled mess, but also that no one who will be required to obey them wants anything to do with them. The executive branch, the military, the FBI and the CIA — no one asked for this new policy. As Spencer Ackerman noted for Wired:
Defense Secretary Leon Panetta opposes the maneuver. So does CIA Director David Petraeus, who usually commands deference from senators in both parties. Pretty much every security official has lined up against the Senate detention provisions, from Director of National Intelligence James Clapper to FBI Director Robert Mueller, who worry that they’ll get in the way of FBI investigations of domestic terrorists.
Also opposing the bill’s unwanted provisions are Department of Defense General Counsel Jeh Johnson, Obama Counterterrorism adviser John Brennan, 16 former interrogators and counterterrorism professionals, and 26 retired military leaders who, on Tuesday, urged Senators to support an amendment by Sen. Mark Udall, backed by Sen. Jim Webb, to strip all the troublesome provisions from the legislation (and also see Sen, Udall’s eminently sensible Washington Post op-ed). Despite this, the Udall amendment was defeated by 61 votes to 37 (with 16 Democrats voting against the amendment — see the breakdown of votes here).
In addition, President Obama has threatened to veto the bill, although whether he will remains to be seen. The mandatory military custody provisions, after all, have a get-out clause, as Andrew Cohen noted for the Atlantic a month ago, when he wrote:
Section 1032, to be applied in concert with Section 1031, contains a mandatory detention requirement for anyone “determined” (by the military) to be a member of al-Qaeda or its affiliates. It allows the executive branch, however, to “waive” this requirement by having the “Secretary of Defense … in consultation with the Secretary of State and the Director of National Intelligence” submit to Congress a written certificate that the waiver is in the “national security interests of the United States.” The executive branch, in other words, would practically have to do a song-and-dance on Capitol Hill to prosecute a terror suspect in civilian court.
Obama, of course, is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on the Internet. However, it seems likely that his defense secretary, Leon Panetta, will indeed be forced to jump through hoops if the custody provisions are not removed.
I honesty find it hard to believe that these proposals even made it as far as they did, especially as Sen. Carl Levin was involved in drafting the legislation with the usual deranged suspects — Sens. John McCain, Lindsey Graham and Joe Liebermann — plus torture advocate Sen. Kelly Ayote, who attempted to specifically reintroduce torture as official US policy in her own deranged bill, which was recently defeated. Astonishingly, the Senate Armed Services Committee, where this toxic brew was created, conjured it up in secret, which did not go down well with some of the lawmakers’ colleagues. Although Senate Majority Leader Harry Reid initially found his spine and spoke up against it, he soon remembered that it is his job to cave in on matters of importance, which he duly did, although others were not so easily swayed.
Vermont Sen. Patrick Leahy, as Andrew Rosenthal explained in the New York Times, noted with horror that the provisions were “hashed out behind closed doors without consultation with his committee [he is the chairman of the Senate Judiciary Committee], or the Intelligence Committee, or the Defense Department, the FBI or the intelligence community.” In addition, as Andrew Cohen explained:
Leahy, and California’s Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, wrote Sen. Reid a letter requesting that the controversial provisions be removed from the NDAA. “We concur with the Administration’s view that mandatory military custody is ‘undue and dangerous,'” they wrote, “and that these provisions would ‘severely and recklessly undermine’ our Nation’s counterterrorism efforts.”
The provisions relating to Guantánamo and why they are also important
However, while a host of critics are lined up against the mandatory military custody aspects of the bill, far less attention, unfortunately, has been paid to the provisions preventing the closure of Guantánamo. As Andrew Cohen lamented a month ago, “I think Section 1034 [banning the use of any funds to buy an alternative prison] may be the worst of the lot — a triumph of fear and prejudice over pragmatic solutions. But it doesn’t appear to have raised the hackles of even those senators who are opposed to some of the other provisions. Go figure.”
Go figure, indeed. It may, perhaps, be slightly cynical of me to note that the story of Guantánamo involves foreigners and that Americans only wake up in any kind of numbers when legal monstrosities might apply to American citizens, but there does appear to be some truth in it. If it could be demonstrated that no American could possibly end up in mandatory military custody as a result of the Senate’s mad provisions, I would be prepared to wager that hardly any Americans would bat an eyelid.
As it is, I can only hope that the two sections relating to Guantánamo, and two other sections specifically criticized by the President’s advisors (in which Congress demanded detainee reviews from the executive branch) are subjected to a veto. To make it clear, Section 1033 (which ramps up unjustifiable restrictions already implemented by lawmakers) is entitled, “Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantánamo Bay, Cuba, to foreign countries and other foreign entities,” and it stipulates that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”
As noted above, Section 1034 (which repeats previous bans imposed by lawmakers) is entitled, “Prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantánamo Bay, Cuba,” prevents the closure of Guantánamo by stopping the President from buying or modifying an alternative facility elsewhere, and then there are the two other provisions, both new, and both largely unnoticed.
Section 1035, entitled, “Procedures for periodic detention review of individuals detained at United States Naval Station, Guantánamo Bay, Cuba,” requires the Secretary of Defense “to submit a report to Congress for implementing the periodic review process” established in the executive order of March this year, which, outrageously, authorized the indefinite detention without charge or trial — but with periodic reviews — of 46 of the remaining 171 prisoners, on the unacceptable basis that they were too dangerous to be released, but that there was insufficient evidence to put them on trial.
Section 1036, entitled, “Procedures for Status Determinations,” states that, “Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40) for purposes of section 1031″ — meaning that it is supposed to establish, to the satisfaction of Congress, who will be subjected to mandatory military custody.
The response of the President’s Office, in its letter threatening a veto, spells out the administration’s opposition to these sections, and is of interest. The President’s advisors noted:
The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.
Section 1034’s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate.
Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.
Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense.
The President’s advisors concluded:
In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.
Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qaeda and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.
This is not quite the end of the road for the NDAA, as it must now be consolidated with the version previously passed by the House of Representatives, which I wrote about here and here. However, it is almost certain that the President will soon be required to make clear what he thinks.
If Obama is wavering, as is his habit, I would suggest that he takes note of the fact that the election season is nearly upon us, and that, as we approach that frenzy of hype and hyperbole, he needs do something to make his progressive supporters remember why they might want to vote for him, rather than just hoping — or presuming — that they will not vote against him. In short, the President needs to veto this bill, and stand up for US justice, and the still-pressing need to close Guantánamo, rather than doing as he has so often on national security issues, and caving in to pressure.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.
On Facebook, Tutta Labella wrote:
Sometimes I even dream that the news I read that day are just a nightmare. Because everything is so absurd!
Barbara Cummings wrote:
Will he veto it? Answer: NO. He is scared of being called “weak on terror”, still
Lance Ciepiela wrote:
Carl Levin, democrat and chairman of the Armed Services Committee, could have rejected the heated provision for indefinite detention without due process – instead, sided with the republican ranking member, John McCain, to subjugate further the nation’s Constitution in favor of ongoing and unending wars against a tactic [terrorism].
Thanks, Tutta, Barbara and Lance. Good to hear from you.
You’re probably right, Barbara, although we’ll have to wait and see for complete confirmation. As the more astute commentators are pointing out (and as I hope I mentioned strongly enough), it’s not as though Obama is some sort of softie on national security, as his assassination policy demonstrates. Even so, ten years after 9/11, and with bin Laden dead and al-Qaeda crippled, the thought that lawmakers are obliging the administration to have to beg them not to put terror suspects in military custody is just ridiculous, and is a clear reason for a veto.
As I also hope I made clear, Obama needs to stand up on Guantanamo as well, as these restrictions are, by any objective criteria, horribly and unjustifiably restrictive.
William F. Lee wrote:
The White House sort of, kind of, maybe indicates that Obama possibly, maybe will consider vetoing the legislation — http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf — but, as Glenn Greenwald points out, the bill, shocking as it is, basically only reaffirms and legitimates powers already claimed by the Obama administration as perfectly valid: http://www.salon.com/2011/12/01/congress_endorsing_military_detention_a_new_aumf/
Thanks, William. Yes, Glenn’s one of those astute commentators I mentioned above. Even so, as I also mentioned above, it’s not business as usual for the President, the defense secretary and the FBI to have to ask Congress if they can prosecute a terror suspect as a criminal in federal court, rather than have to sling them into the sort of black hole that Dick Cheney could only have dreamed of seeing endorsed ten full years after 9/11, and with Osama bin Laden dead. That’s loopier than almost anything I’ve ever had to put up with when it comes to “national security.”
David Reinken wrote:
While I certainly hope he vetoes it, the veto will be largely symbolic since the vote was 93-7 and the veto can be easily overridden.
Thanks, David. Yes, I get your point exactly, although I can’t see how, from a law enforcement point of view, any of these restrictions can be allowed to damage national security rather than helping to keep America safe, as it is so demonstrably counter-productive to hold criminals (that’s your terrorists, Senators) in military custody. It’s an extraordinary mess.
William F. Lee wrote:
Isn’t it true that all the “terror” suspects brought to trial thus far have been prosecuted and convicted in civilian courts? Clearly these Senators, including a shocking 15 “Democrats”, do not have any trust in the Constitution or the U.S. legal system (flawed as both are).
Well, you know, there have been six trials — or plea deals — in the military commissions at Guantanamo. Six in ten years. And only one led to a life sentence. For a man who refused to mount a defense. I don’t think the Senators are thinking logically. They’re not even interested in trials. They want pre-Magna Carta, pre-1215 dungeons, in which they can throw anyone they label “al-Qaeda” and let them rot without charge and without trial. This is what we got by having Bush and Cheney and Rumsfeld, and it’s what we now get by having an administration that has been too cowardly to stand up for what is right, to prosecute torturers, and to thoroughly repudiate the notion of indefinite detention without charge or trial.
[…] Re: A Decleration of War Against the American People? Deranged Senate Votes for Military Detention of All Terror Suspects and a Permanent Guant […]
It is always difficult to find a group of people more feckless or odious [or these days, more unpopular!] than the U.S. Congress… so in short… what else is new?
And as to the President who will inevitably sign this particular legislative abomination, those of us who may have bought into the “hope and change” stuff should realize that we did get “the change” part: the Bush agenda is now on steroids.
Our only hope for an eventual return to the rule of law and to justice in general rests not within “the system” anymore; the system is too fundamentally corrupt. If Goldman Sachs wanted GTMO closed and its prisoners released, there would be transport planes scrambled for deployment to Cuba before I finished typing this sentence. Clearly, Goldman (and Citi, and Morgan, and Bof A, etc.) feel their ill-gotten bread is buttered by the continuity of the American garrison state, and indeed, the “Occupy” movement here has shown that the American, if not the entire Western, system, is held together not by some mythical “consent of the governed”, but by the very thinly veiled permanent threat of violence– violence which will be unleashed at the slightest provocation– even just calling out the system itself and trying to shame it.
And so the threat of violence– in this case, detention in a Caribbean gulag– is now codified. The problem is… so what? This seems to have been the law since 2002, when Messrs. Padilla (US citizen) and al-Marri (US legal resident) were summarily lifted from the streets of the USA and sent to open-ended, charge-less, trial-less, counsel-less military detention. So… now it’s “the law” as part of the US Code? In practical terms… this really is now old news.
If our friends in the Occupy movement have shown us nothing else, they have shown us that here in America THERE SIMPLY IS NO LAW, in any real sense. The criminals responsible for the destruction of the world economy will not be prosecuted for anything. But those trying to call out the system for its intrinsic injustice WILL feel the mighty boot of the finance/state consortium. We will incarcerate people for the most minor of drug infractions, but financial criminals (let alone official torturers) remain “above the law.” Under such a “tiered” legal system… there simply is NO LAW. Only the whims of the powerful, as to whether they will deign fit to permit particular outcomes in particular circumstances.
That said… our ultimate “hopes” for a return to rule of law and justice are twin– either the power of the Occupy movement’s simple implicit message– something is extraordinarily wrong with the system writ large, and everyone knows it… or that the American Empire will literally collapse under its own weight, that the sheer unsustainability of permanent war coupled with not taxing members of our super-elite and hollowing out the lives of “the 99%” will cause implosion, similar if not identical to the Soviet experience.
Otherwise, the only thing we can count on within “the system”… be it Congress, the President (likely Obama reelected, or else some generic Republican of comparable views on these issues) and the courts… is that they will make things worse.
The system is now beyond reform… and unfortunately, its attitude is that the gulags will remain open until morale improves.
TD, my friend, how marvellous to hear from you — and how sad the message. It set me to thinking how whatever hopes we might have tentatively entertained when we got to know each other four years ago — wondering how the Bush era would end, but feeling, if I recall correctly, that it would have to end somehow — have been so thoroughly dashed by Barack “do nothing” Obama. It’s not the only change, of course, as we’re seeing the reverberations of the economic meltdown that never went away after 2007-08 and that is now obviously here for good, which has finally punctured the last great bubble of Western capitalism’s deranged self-belief, and which has been the driver of our myopic self-obsessed societies for so much of the last 30 years.
I agree with you regarding the importance of the dissent and call for radical change embodied globally in the “Occupy” movement, and hope that the refusal of young, educated, indebted, unemployed people to stay at home and self-medicate continues. That, I think, can only be a positive thing, but they’re up against a huge dying monster that shows no sign of changing its behavior, so it may be that your other prognosis — that the empire “will literally collapse under its own weight, that the sheer unsustainability of permanent war coupled with not taxing members of our super-elite and hollowing out the lives of ‘the 99%’ will cause implosion” — is probably more accurate.
Bob Perillo wrote:
A brave new planet.
Thanks, Bob. Nice update on Shakespeare/Aldous Huxley.
Here are some comments from Common Dreams:
Unsurprising. Expected. Welcome to overt, blatant fascism here in the U.S., finally. Although the MSM won’t use that word, of course. Constitution? Habeas corpus? Pffft – fuggetaboutit!
Constitution? What constitution? It has just been repealed.
What was that little revolutionary war against tyranny thing all about again?
Applying terms like “incompetent” and “deranged” excuses this action and implies that somehow a mistake occurred.
The US Senate is simply assuring an eternal revenue stream for the military industrial complex that owns most Senators.
They must be very afraid of the people and rightfully so. The Senators have been making a killing on everything at the expense of the people they serve. Most should be imprisoned for crimes against humanity and/or financial fraud and/or treason.
When you push people into being silenced, you then have no idea what’s afoot.
To our representatives: there is always a yin to your yang-
I, for one, a lifelong Democrat, will vote against Obama’s re-election by not voting at all. There are many like me who have decided that devoting time to the Occupy movement replaces the 5 minutes spent in the booth voting for the ‘lesser of the two evils’. Thank you, Mr. Obama, for curing me of that disease.
Obama has “threatened” to veto the National Defense Authorization Act because of the provision that legalizes Americans snatched off the streets and shipped to Guantanamo the way we treat foreigners. Does anyone expect the great capitulator to actually do as he promised?
The ” savior” is/ will be the People ! Since the oppressors will do nothing but pass more fascist laws, and the atrocities against the people will increase…full scale Rebellion will break out within one year ! As for ” hope a dope”, obomber, any chance of the mass murderer in chief doing any good ended long ago !
Two Americas wrote:
This is not a Hollywood movie, and there is no savior.
You cannot “clean up the jetsam in the government criminal conspiracy” to restore “America the Beautiful” ™ to its former glory, as though you were laundering dirty clothes.
Paul Revere wrote:
I am not blowing my own horn, because I wish I had been wrong, but I predicted before 9/11 that since America’s foreign policy had been mostly fascist that it was just a matter of time that America’s domestic policy would be exposed also as fascist once enough Americans awakened from the propaganda and government mendacities they had been fed for many years. Looks like the net and the OWS movement is proving that statement. Folks: If you are part of the 99% and do not do everything in your power to stop the perdition of our Constitution and Bill Of Rights; then you are helping the 1% whether you realize it or not. The latest poll said approximately 75% of Americans support the OWS movement; that is at least 100 million people, so may I ask: where are they?
With their approval rating in the single numbers, congress had to ways two remedy the situation. They could straighten up and do something worthwhile for the average American, or they could call anyone that disagrees with their performance a terrorist, and throw them in jail indefinitely without a trial.
I guess we now see which choice they made…
93 to 7 in favor. The 7 who voted Nay:
Tom Harkin, Democrat, Iowa
Rand Paul, Republican, Kentucky
Tom Coburn, Republican, Oklahoma
Jeff Merkley, Democrat, Oregon
Ron Wyden, Democrat, Oregon
Mike Lee, Republican, Utah
Bernie Sanders, Independent, Vermont
Every other senator would put you and your kids in Guantanamo Bay without a trial and without evidence.
Andy, I sincerely admire your perseverance, conviction and determination, but you know that closing GITMO would mean that the terrorists will have won.
[…] Andy Worthington, […]
On Facebook, Michael E. Badgett wrote:
Time for impeachment hearings, war crimes trials; and, the “RECALL” of Congress 2012!
Thanks, Michael. It’s certainly another example of the unsuitability of Congress to provide any kind of leadership or sense of proportion, and, of course, it’s just part of a bigger picture, in which the entire political system has failed. The same things are happening here in the UK, with lawmakers too far removed from the realities of life for the majority of voters to care about the effects of their economic betrayal, and their obsession with fearmongering and war.
I’m very much hoping that the disgusting orgy of money that is the Presidential Election campaign will be the target of activists throughout 2012, as I find it hard to think of a time in history when there has been a more worthless enterprise — hollow men and women spending unimaginable amounts of money to lie about each other, to make false promises, and to try and look tough, when what is needed is no corporate funding whatsoever, and an attempt to create a genuinely new and radical vision of the future.
AniTa Hdz wrote:
he won’t veto it…He is “owned”
Thanks, AniTa. Short and to the point.
[…] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 2 December 2011 Image by Maggie Osama via […]
George Kenneth Berger wrote:
I just shared this, Andy.
Dejanka Bryant wrote:
Thanks, George and Dejanka. Good to hear from you. I’m glad this article is still reaching out to people who haven’t seen it — and especially to both of you!
Dejanka Bryant wrote:
Voting is on Thursday, this week, isn’t it? I will be on alert when this happens. Hopefully, we are not going to face military dictatorship. Even a thought of that possibility makes me nervous. What would be next? Legalising torture techniques in all cases? Living nightmare.
No, voting’s over. They voted 93-7 in favor of the whole act, including those dreadful sections. The closest the Senate came to voting against any of it was on two amendments by Dianne Feinstein, but they were both defeated by 45 to 55 votes. The first amendment sought to limit the detentin provision to prisoners captured outside the US, and the second sought to exclude US citizens. Hence the compromise between Feinstein and Lindsey Graham, 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.”
That amendment passed by 99 votes to 1, and only Sen. Jon Kyl voted against it. As I mentioned in the article, no one quite knows what the existing provisions are for detaining US citizens. However, Sen. Dick Durbin provided a good explanation of why it will be judges and not lawmakers who decide. “To this day the Supreme Court has never ruled on whether it is constitutional to indefinitely detain a US citizen captured in the United States,” he said. “Some of my colleagues see this differently, [but] the language we’ve agreed on makes it clear. The Supreme Court will decide who can be detained; the United States Senate will not.”
The Supreme Court, of course, may no longer be sufficiently objective to rule against military dictatorship, but presumably we will see at some point, when we will be reminded of what the Bush administration did to Jose Padilla and Yaser Hamdi and Ali al-Marri …
As for non-Americans, there appears to be no way out, unless the administration specifically requests it. That said, I really do expect that there will be pressure from a law enforcement point of view to get rid of the mandatory military custody aspect of this legislation, as it’s so obviously counter-productive to put “terror suspects” in military custody, rather than have them interrogated by law enforcement professionals.
And then there are the Guantanamo provisions, which I will have to return to separately, as the Senate’s demands to keep Guantanamo open forever have rather been overshadowed …
So, as it turns out, the reason that the Obama administration wants to veto the National Defense Authorization Act is because it would force the US Government to treat detainee’s as prisoners of war under the Geneva Convention. The US Government doesn’t want to allow any rights to those it declares to be ‘terrorists’, so it wants to circumvent this. The US dictatorship doesn’t have the ‘flexibility’ to torture people under the Geneva Convention – especially if those people are deemed ‘Prisoners of War’. The US regains that ‘flexibility’ to torture and rendition if those people deemed to be ‘terrorists’ are given the label ‘enemy combatants’ instead.
“The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests. The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role. These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations. Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people. ”
Interesting. Thanks, Chad.
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