Last week, I wrote about legislation making its way through Congress that would allow U.S. citizens to be arrested on U.S. soil, stripped of their constitutional rights and transferred immediately into military custody for indefinite detention.
That threat remains very real, so I think it’s important to review where we stand and to clarify a few things.
Last Thursday, by a vote of 45-55, the Senate rejected an amendment proposed by Dianne Feinstein of California that would have exempted U.S. citizens from such treatment. “”We are not a nation that locks up its citizens without charge, prosecution, and conviction,” Feinstein said during debate, but a majority of her colleagues disagreed with her. (See roll call here.)
Later, however, the Senate approved another Feinstein amendment by a vote of 99-1 that was sold as a compromise solution. It reads:
“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”
In other words, the amendment states that the pending legislation would change nothing regarding how U.S. citizens are to be treated. With that language in place, the Senate then went on to approve the overall bill by a vote of 93-7.
However, I do not believe that “compromise” resolves the problem at all, for two reasons:
1.) Imagine yourself as a judge. You find yourself confronted by clear legislative language allowing U.S. citizens to be transferred to military custody without trial. You also find amorphous language stating that “nothing in this section shall be construed to affect existing law.” Most judges would and probably should resolve that contradiction by siding with the clear legislative language that allows detention of U.S. citizens without trial. In other words, I don’t think the “compromise” accomplishes a damn thing on this controversial issue. If it did, it wouldn’t have passed 99-1.
2.) According to Senators Carl Levin, John McCain, Lindsey Graham and others, existing law already allows U.S. citizens to be picked up on U.S. soil and transferred immediately into military custody, without benefit of trial. They believe the government holds what you might call a “throw them into jail free” card, and as proof they cite the 2004 Supreme Court case “Hamdi v. Rumsfeld.” In that case, justices allowed the U.S. government to treat Yaser Esam Hamdi, a dual U.S.-Saudi citizen, as an enemy combatant to be handled through the military justice system, not through civilian courts.
As Graham said during Senate debate:
“It is not unfair to make an American citizen account for the fact that they decided to help al-Qaida to kill us all and hold them as long as it takes to find intelligence about what may be coming next. And when they say ‘I want my lawyer,’ you tell them ‘Shut up. You don’t get a lawyer’.”
However, I think it’s important to note that Hamdi was captured on a battlefield in Afghanistan, having joined the Taliban and taken up arms against the United States in a foreign land. I would propose that his case is fundamentally different than the case of a U.S. citizen who is arrested here in this country.
U.S. Sen. Rand Paul of Kentucky, one of three Republicans to vote in favor of Feinstein’s original amendment, put the question directly to McCain during floor debate, and in response McCain squirmed:
For those unable to watch video, Rand asks whether, under the legislation, it would be possible for a U.S. citizen to be arrested and shipped to Guantanamo Bay without trial for indefinite detention. Yes, McCain responds. “As long as that individual, no matter who they are, if they pose a threat to the security of the United States of America, they should not be allowed to continue that threat,” he says. “I think that’s the majority of American public opinion.”
I’m sorry. That is just fundamentally wrong. It is a de facto pronouncement of martial law.
In my post last week, I noted that the Obama administration has threatened to veto the overall bill, the National Defense Authorization Act, unless its problems with this particular section are addressed. So far, that remains its position. (The provisions in question can be read here.)
As the White House said in a statement earlier this month:
“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.”
However, the civil-liberty implications of the bill are not the administration’s main concern and are not driving its veto threat. Its primary objection is a requirement that the federal government turn over all al-Qaida-related suspects to the military. Under that change, suspects arrested in this country could not be handled through civilian courts and civilian law enforcement unless the government invokes a rare “national security waiver.”
(Under the provision, U.S. citizens linked to al Qaida and arrested here would not be required to be transferred to military custody. In such cases, transfer would merely be allowed.)
These provisions are being pushed because of outrage in some quarters over the handling of Umar Farouq Abdulmuttalab, the so-called “underwear bomber” who on Christmas Day 2009 tried to blow up an airliner. Abdulmuttalab, a citizen of Nigeria, was arrested, interrogated by FBI agents, confessed and later pleaded guilty. Information he divulged helped to link his attack to Anwar al-Awlaki, a U.S. citizen and radical cleric based in Yemen who was killed earlier this year in a Predator strike.
McCain and others were outraged that Abdulmuttalab’s case had been handled by civilian authorities. “That person should be tried as an enemy combatant; he’s a terrorist,” McCain told CNN. “To have a person be able to get lawyered up when we need that information very badly betrays or contradicts the president’s view that we are at war.”
The provisions in question, inspired by the Abdulmuttalab case, are an attempt to take that decision out of the hands of the executive branch and insist that such cases be handled by the military. The Obama administration, backed by the CIA, FBI, the Pentagon and others, believes it is mistake to take away that flexibility.
While I agree, I think the civil-liberty implications of the bill are even more chilling.
– Jay Bookman