Indefinite Domestic Military Detentions

Can the president use the military to arrest anyone he wants, keep that person away from a judge and jury, and lock him up for as long as he wants? In the Senate’s dark and terrifying vision of the Constitution, he can.

Congress is supposed to work in public. That requirement is in the Constitution. It is there because the folks who wrote the Constitution had suffered long and hard under the British Privy Council, a secret group that advised the king and ran his government. We know from the now-defunct supercommittee, and other times when Congress has locked its doors, that government loves secrecy and hates transparency. Transparency forces the government to answer to us. Secrecy lets it steal our liberty and our property behind our backs.

Last week, while our minds were on family and turkey and football, the Senate Armed Services Committee decided to meet in secret. So, behind closed doors, it drafted an amendment to a bill appropriating money for the Pentagon. The amendment would permit the president to use the military for law enforcement purposes in the United States. This, of course, would present a radical departure from any use to which the military has been put in the memory of any Americans now living.

The last time the federal government regularly used the military for domestic law enforcement was at the end of Reconstruction in the South, in 1876. In fact, the deal to end Reconstruction resulted in the enactment of federal laws forbidding the domestic use of American military for law enforcement purposes. This has been our law, our custom, and our set of values to which every president has adhered for 135 years.

It is not for directing traffic that this legislation would authorize the president to use the military. Essentially, this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases. And that person, under this terrifying bill, would have no recourse to a judge to require the president either to file charges against him or to set him free.

Can you imagine an America in which you could lose all liberty — from the presumption of innocence to the right to counsel to fairness from the government to a jury trial — simply because the president says you are dangerous?

Nothing terrified or animated the Founders more than that. The Founders, who wrote the Constitution, had just won a war against a king who had less power than this legislation will give to the president. But to protect their freedoms, they wrote in the Constitution the now iconic guarantee of due process. The Fifth Amendment to the Constitution says, “No person shall be … deprived of life, liberty, or property, without due process of law.” Note, the Founders used the word “person.” Thus, the requirement of due process must be accorded to all human beings held by the government — not just Americans, not just nice people, but all persons. When Lincoln tried to deny this during the Civil War, the Supreme Court rejected him and held that the Constitution guarantees its protections to everyone that the government restrains, no matter the crime, no matter the charge, no matter the evidence, no matter the danger.

If this legislation becomes law, it will be dangerous for anyone to be right when the government is wrong. It will be dangerous for all of us. Just consider what any president could get away with. Whom would he make disappear first? Might it be his political opponents? Might it be you? 

COPYRIGHT 2011 ANDREW P. NAPOLITANO. DISTRIBUTED BY CREATORS.COM.
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Levin floor statement on detainee provisions of NDAA

Tuesday, November 29, 2011

Following is an unofficial transcript of Sen. Levin’s remarks today on the Senate floor regarding detainee provisions of the National Defense Authorization Act for FY2012:

There have been so many misstatements of fact that have been made, it’s hard to keep up with them, but let me just take the last statement that the senator from Illinois made about changing military tribunal law. There is no change in military tribunal law whatsoever which is made in this bill

Now, I’m going to address the other misstatements that have been made by my friends and colleagues, but that one is the most recent so I want to just take on that one first.

Now, in terms of constitutional provisions, the ultimate authority on the constitution of the United States is the Supreme Court of the United States, and here is what they have said. In the Hamdi case about the issue which both our friends have raised about American citizens being subject to the law of war. “A citizen,” the Supreme Court said in 2004, “no less than an alien, can be part of supporting forces hostile to the United States and engage in armed conflict against the United States. Such a citizen,” referring to an American citizen, “if released would pose the same threat of returning to the front during the ongoing conflict.” And here is the bottom line for the Supreme Court. If we just take this one line out of this whole debate, it would be a breath of fresh air to cut through some of the words that have been used here this morning, one line. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” Okay? That’s not me, that’s not Senator Graham, that’s not Senator McCain. That’s the Supreme Court of the United States recently. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.”

…

Now, there are a number of sections in this bill. My dear friend Senator Udall says these sections as though it is a whole bunch of sections which are at issue. There is really only one section which is at issue here, and that’s Section 1032, and that’s the so-called mandatory detention section that has a waiver in it. Section 1031 was written and approved by the administration. Okay? Section 1031, which my friend from Illinois has just said is an abomination, was written and approved by the administration. Now, Section 1031 is the authorities section. This authorizes. It doesn’t mandate anything with the waiver, the 1032 does. Section 1031.

And now I’m going to use the words in the administration’s own so-called SAP, or statement of administration policy. This is what the administration says about section 1031. “The authorities codified in this section already exist.” So they don’t think it’s necessary, 1031, but they don’t object to it. Their words. The authorities in 1031 already exist. They do. What this does is incorporate already existing authorities from Section 1031. Unnecessary in the view of the administration, yeah, but they helped write it and they approved it. We made changes in it. We have made so many changes in this language to satisfy the administration, I think it all comes down to one section, 1032. 1032 is the issue. Not all the sections, by the way, which would be stricken by the Udall amendment. The Udall amendment would strike all the sections, but it really comes down to Section 1032.

[Section] 1032 is the so-called mandatory provision, which, by the way, does not apply to American citizens. I better say that over again. Senator Graham said it, but let me say it over again. The most controversial provision, probably the only one in this bill, is Section 1032. Section 1032 says that the requirement to detain a person in military custody under this section does not extend to citizens of the United States. I guess that’s the second thing that I would like for colleagues to take away from what I say, is that section — and Senator Graham said the same thing — Section 1032, the mandatory section that has the waiver in it, does not by its own words apply to citizens of the United States. It has a waiver provision in it to make this flexible, and the way in which 1032 operates is that it says that if it’s determined, if it’s determined that a person is a member of al Qaeda, then that person will be held in military detention, they are at war with us, folks. Al Qaeda is at war with us. They brought that war to our shores. This isn’t just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said — and I’m going to read these words again – “there is no bar to this nation’s holding one of its own citizens as an enemy combatant.” They brought this war to us, and if it’s determined that even an American citizen is a member of al Qaeda, then you can apply the law of war, according to the Supreme Court. That’s not according to the armed services committee, our bill or any one of us. That’s the Supreme Court speaking.

Who determines it? What we say to give the administration the flexibility that they want, the administration makes that determination, the procedures to make that determination. Who writes those procedures? We don’t write them. By explicitly, the executive branch writes those procedures. Can those procedures interfere with an ongoing interrogation or investigation? No. By our own language, it says that they shall not interfere with interrogation or intelligence gathering. That’s all in here. The only way this could interfere with an operation of the executive branch is if they decided to interfere themselves in their own operation. They are given explicitly the authority to write the procedures. I think we ought to debate about what is in the bill, and what is in the bill is very different from what our colleagues who support the Udall amendment have described. Yes, we are at war and yes we should codify how we handle detention, and this is an effort to do that, and as the administration says itself, we are not changing anything here in terms of section 1031, we are simply codifying existing law. The issue really relates to 1032.

And that’s what we ought to debate. Should somebody when it’s been determined by procedures adopted by the executive branch, been determined to be a member of an enemy force who has come to this nation or is in this nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? And the answer is yes. But should flexibility be in here so the administration can provide a waiver even in that case? Yes.

And finally, about civilian trials, I happen to agree with my friend from Illinois, and he is a dear friend of mine. Civilian trials work. There is nothing in this provision that says civilian trials won’t be used, even if it’s determined that somebody is a member of al Qaeda. Not only doesn’t it prevent civilian trials from being used, we explicitly provide that civilian trials are available in all cases. It’s written right in here. I — I happen to like civilian trials a lot. I participated in a lot of them, and they are very appropriate, and we have a very good record. In the case that you mentioned, the senator from Illinois mentioned, excuse me, that case was a Michigan case. I know a lot about that case. It was the right way to go. I prefer civilian trials in many, many cases. This bill doesn’t say that we’re going to be using military commissions in lieu of civilian trials. That is a decision which we leave where it belongs, in the executive branch, but we do one thing in this bill in Section 1031, which needs to be said. We are at war with al Qaeda and people determined to be part of al Qaeda should be treated as people who are at war with us. But even with that statement, we give the administration a waiver. That’s how much flexibility we give to the executive branch.