Unless you were watching C-Span2 Tuesday, you may not have noticed that the Senate voted to keep a controversial provision in the defense spending bill that would allow indefinite detention of any terrorism suspect, including American citizens.
This would make it possible for the government to keep you locked up for the rest of your life without ever seeing the inside of a courtroom. So much for the idea that everyone deserves their day in court.
Supporters of the provision argue that such extraordinary measures are necessary in the fight against terrorism. But as Senator Al Franken (D-Minnesota) countered on the floor of the Senate, it's a fight the U.S. appears to be winning just fine without doing away with due process:
[W]hat we are talking about here is that Americans could be subjected to life imprisonment. Think about that for a minute. Life imprisonment. Without ever being charged, tried, or convicted of a crime. Without ever having an opportunity to prove your innocence to a judge or a jury of your peers. And without the government ever having to prove your guilt beyond a reasonable doubt. I think that denigrates the very foundations of this country.
This is one of the few battles on Capitol Hill that hasn't been dividing along sharp partisan lines. Sixteen Democrats voted for indefinite detention. But there's one Democrat who's threatening to have the final vote. President Obama has said he will veto the entire defense spending bill if the one that reaches his desk still has the detainee provision in it.
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Thank you Mr. President!
President Bush that is.
Nope! President Obama, for his pledge to veto the Constitution-gutting garbage in this proposed legislation.
This is a bill under President Obama's administration passed in a Democratically controlled Senate and you still want to blame President Bush. Give it a break!
Obama said he would veto the bill if the "indefinite detention" provision remains. Says so in the article (last paragraph).
So far, Bush is the only POTUS involved in anything that involves indefinite detention.
@ Robdon - This was originally enacted by the Bush administration. To blame Obama is like attacking Iraq for what happened on 9-11-2001.
So ... how exactly is it that someone would think Pres. Obama is responsible for something that he publicly opposes?
What's up with that?
JohnD-4635142
Ditto.
President Obama is the leader of the Democrat party even as President of the United States. How exactly is President Bush to blame when he holds no office nor active in Republican politics? The Democrats had to help this for it to pass the Senate, yet you say blame President Bush without speaking out against the Democrats at all. How juvenile, IMHO.
President Obama hasn't veto it yet...I'll wait until that happens to give him credit for that.
I've got to admit that I don't know the intricacies of the bill. But, ignorance has never stopped anyone from having an opinion. Herein is my two-cents.
Guantanamo was a marginally, temporary, good IDEA; put in to horrible play. Our military demonstrated it's unprofessional-ism in it's horrible treatment of the prisoners, and the unwillingness of it's leaders to put a stop to that treatment. Making the military, really nothing but the goons they have historically been. Professional organization? puhleeze, more like a repository of people escaping jail time or horrible childhoods. [yes, there are many who are professional ... where are THEY in this?]
The P.A.T.R.I.O.T. 'act' was an insane stack of humans lured into running-scared and a ground-swell of corporate greed barbarities - the likes of which we should completely, totally eradicate. Not keep around because one section of it remains a good idea. [a plug for anti-PORK] Any remnants that remain are the direct responsibility of the previous president and his corporate cohorts. The eradication of which is this current presidents job. Made all the harder because corporate interests have not abated. [someone still has coins in their pocket -- is my cynical read]
I agree with the President, veto the whole mess if it contains even one little hint of denying human and civil rights. We do our national self respect no service when our leadership becomes like the rabble.
Listen up you senators and congressmen. Disappear you corporate lobbyists. Our government is for promoting and protecting Americans... those that need the extra help... not those that want a second serving of cake.
With respect.
Too, too funny...and I have to admit I've probably fallen into this category myself from time to time. Sometimes intentionally (fully knowing I didn't know) and sometimes solely by accident. Thanks, Ivy!
I am confused here RD: President Bush enacted the Patriot Act under his presidency when Republicans controlled both the House and the Senate. The Patriot Act is thanks to the Republican Party when we talk about the majority who passed it. Now are you issuing umbrage because the majority of Democrats also voted for the bill? I am not understanding your objection.
The Mouzer
Ditto.
The negative remarks about Pres. Obama appear to be some kind of crude social engineering.
Wow Ivy, your ignorance is exceeded only by your ignorance.
Mouzer, this is not the Patriot Act. It is part of the National Defense Authorization Act that came out of a Democrat controlled Senate committee and was sponsored by the Democrat chairman of that committee in the Democrat controlled Senate. So there are Democrat fingerprints on this bill and these provisions, NOT the previous administration's.
There is a certain irony this post immediately follows the one on Barney Frank. Al Franken is one of the handful of members of Congress (Frank, Sanders, Sherrod Brown being among, but not all, of the others) who I know I actually agree with over 90% of the time.
But Mr. Franken has been, in my judgement, far too silent given the talent he has. I know that one of the unwritten rules of the U.S. Senate is when you are new you should sit down, speak seldom, and perch in the Chair when your name comes up on the rotation, but he is now in his 3rd year. With Barney departing it is my hope Franken will begin to make some more noise.
AMEN to that! Hope he steps up!
Amen to that! I really hope that Sen. Franken will step up more often now!
I believe Franken knows he needs one re-election to pretty much really gain traction, and given how anyone really speaking out effectively becomes a GOP target he's wise to limit those times as a bullseye. Once he is re-elected I think you will see him much more verbal and effective. At least this is my hope.
Al Franken is one of the few people with a clue.
Would be nice for Barney Frank to weigh in on the issue.
I hope President Obama vetoes this bill -if it reaches his desk in its current form. That would be the last straw for me in terms of voting for him.
You would give up on him for good if he vetoes it?
Please explain.
this terrifies me, and I don't know why more people aren't scared by it. I really do hope Obama vetoes it, and the veto sticks.
Just so you all know, the senate bill in question in SB1867
http://thomas.loc.gov/cgi-bin/query/F?c112:1:./temp/~c112hajDgP:e464889:
The relevant section in 1032. Which refers to section 1031 (for some reason no included in the text of the link).
Without section 1031, it's difficult to gauge whether the interpretation to US citizen detention is accurate, given that 1032.b(1) reads, "The requirement to detain a person in military custody under this section does not extend to citizens of the United States."
However, in other coverage legal experts have said that it absolutely applies to US citizens captured in the United States by forces of the US military.
Thank you for providing this information John. Much appreciated on my behalf, at least.
I am curious as to why the focus seems to be on US citizens? In asking that question please do not misconstrue me as to imply that life imprisonment of US citizens w/o the possibility of trial is somehow not an issue; it strikes me as odd that we put so much emphasis on US citizens while simultaneously trying to argue the morality of such a law.
From the moral perspective: The United States (whether good or bad) has taken on the role of being world police which means we have put ourselves forward as the singular representative of justice in the world. If we then conduct ourselves in ways that are unjust or contradictory it then fundamentally undermines our position in the world while simultaneously undermining our authority to assert said position. Is it not, then, in the US' best moral interest to uphold justice even at times when upholding the law can be complicated, scary, and difficult? Additionally how does a nation argue that it has the authority to implement or imprison other persons if said nation shows that it is contradictory or unjust in applications of the law?
From the legal perspective: If we have enough evidence to keep people in jail then we have enough evidence to put them on trial. There isn't really a substantial legal argument that I've heard as to why, if there is enough evidence to imprison someone, we cannot bring the Guantanamo suspects forward for trial. I have heard cited security concerns, but even this does not hold up being that A. judges in civilian courts can order that documentation and public access be limited or denied completely if it jeopardizes the trial, B. military courts also have this same liberty, and C. even after the trial the documentation may still be submitted to- and subsequently have sensitive information redacted from- the CIA or DoD in order to be in coherence w/ the State's Secrets initiative. Therefore I am at a loss to explain why we cannot legally bring these people to trial or how failing to do so does not violate our international agreements as well as federal laws and SCOTUS (or federal court) rulings regarding the treatment of foreigners w/in our criminal justice system. If anyone has information here as to why I am wrong please bring it forward. I've read up on this issue from both sides, but I haven't been able to find a cogent argument as to why they cannot be brought forward for trial. Like I said the only argument I've encountered is the one about State's Secrets, and there are already provisions in place that deal w/ such issues.
Additionally I am w/ RobDon on this one that I will wait to congratulate POTUS when he actually vetoes this legislation for having the indefinite detention procedure. While I am happy he is speaking about the issue and bringing it back up for civilian discourse, we must all remember that PBO spoke out against the Patriot Act several times right before he voted to re-instate it to law.
Based on my reading of the text of the law, the concern about applicability to US citizens is because of section 1031(b)(2), the definition of who is covered under the new detention authority.
1st, who are the associated forces?
2nd, ANY person who has committed a belligerent act. Belligerent act as defined in the law of war (under which this section falls).
The definitions of who might fall under these detention sections is fuzzy, and it can be argued that ANY justification can be used to arrest and hold ANY person indefinitely. In contradiction to our constitutional protections as citizens.
If I make a statement saying that the actions of Hezbolla militants were justified against Isreal...am I now a "person supporting a belligerent act against a coalition partner"? What is required to be directly supporting? Who decides and under what standards?
The line in 1032 about "the requirement to detain ... does not extend" may be interpreted as either "the military MUST NOT detain" or more loosely as "not required to detain, but are authorized to do so"
The language is a problem because it's open to interpretation.
It won't matter what the definition is. If they have the capability to do it, the reason is beside the point because there will be no court or ruling authority to hear why you have been detained, and subsequently reverse your detainment.
Sorry, I didn't answer the question. The focus on US citizens because the military does not currently have the authority to detain US citizens, either on US soil or overseas. They can act in concert with civilian authorities. But they can't go into Yemen with a special forces team, grab up a US citizen, and ship him to Gitmo only on the suspicion of wrong-doing based on intelligence.
If this bill goes unchanged through the house and the president signs it, it gives a broad new authority to the military that it didn't have before.
Not a problem. They can have the CIA do it for them, and the CIA can either send in a team or they can just have a drone terminate the target.
The US military cannot operate inside the US with the exception of military bases.
This prevents things like if Maryland wants to invade Virginia. Yah. That happened.
The Posse Comitatus Act prohibits military personnel from enforcing domestic laws in all states, commonwealths, and territories of the United States (1878). This is why the FBI exists (probably the only reason). Our government would be virtually indistinguishable from Mexico without this law.
Mexican military, courts, judges, and police are all the same thing. That is why police in Mexico just fill out some paperwork after killing someone that the US reports to be a fugitive from justice (used to be a long drawn out process before the Internet).
The Posse Comitatus Act split up those agencies so the US is not like Mexico.
This link might be helpful.
Habeas corpus must be suspended before the US military is allowed to operate inside states, commonwealths, and territories. This is called "martial law".
The PATRIOT Act does not repeal Posse Comitatus or section 9 clause 2.
US citizens traveling outside the US do fall within the scope of the military because Posse Comitatus does not apply. If the president authorizes termination of a US citizen on foreign soil using military force, then it is the responsibility of the other country to object though their US embassy. That is not a crime. It is "aggressive diplomacy".
If congress doesn't like it, then they need to pass a law prohibiting the president from doing that, then convince the president to sign it (like that's gonna happen).
US courts cannot enforce anything that happens outside US borders, including if the president authorizes lethal military action against a US citizen on foreign soil.
Pres. Obama has a doctorate in this. I'm pretty sure he knows what he's doing.
ACLU may be reluctant to object to police action at this time because there is some risk that this could erode national security. That needs to change to make sure we don't loose our civil rights.
I did not mean why the focus on US citizens as in to say I did not understand the argument for concern (although I sincerely appreciate the thorough responses). What I meant was that the concern seems to be solely focused on US citizens when, at least in my mind, the concern is quite broad. The arguments I was presenting were meant to be arguments in total as to why the Patriot Act has concerns even if it doesn't affect US citizens. W/ that said I do not disagree w/ anyone's particular point as to why it's so concerning about US citizens. I believe I had quoted this at another time, but JIC I will post it again just in case:
http://www.salon.com/2009/07/25/military_4/singleton/
My suggestion is for everyone to read the pdfs too. Since we have seen that the previous Administration set up precedent for using military forces against US citizens (even on US soil) this legitimizes fears of the breadth and scope of anti-terrorism policy (not just the Patriot Act, but that one is especial in this regard). The point I was trying to make was even if these concerns were removed there are still concerns regarding the morality and legality of the Patriot Act and other anti-terrorism policies. My inquiry wasn't meant to be a red herring to say let's not focus on one in lieu of the other, but was rather meant to ask why it hadn't been brought up in the thread.
Saw your other post, sort of the same response to both of them. I don't claim to be an expert on this and I tend to agree, Pres Obama knows hella more than me about this.
I know about Posse Comitatus Act, and this bills language certainly seems to contradict it. Though given that the bills language falls under the definitions under the law of war and the War on Terror Authorization...it would require more research on my part to come to a moderately sure opinion about it.
Certainly the PCA doesn't apply overseas, but I'm not certain the military can act against US citizens overseas without approval of the President. The language in the bill would seem to alter that. Again, I would have to do more research into the law of war as it applies to US Citizens considered enemy combatants. That's part of what this bill would change, the definition of who the military can act against.
Given the complexity of the law involved, my inclination is to 1) be against it and 2) defer to the experts.
Still, I like to read and try to understand at least the basics of the controversy rather than simply go with my gut instinct.
Edit fail! Ack! Meant I believe I had quoted this at another time, but JIC I will post it again...the second just in case was not necessary >.< redundancy is bad!
Mouzer, I agree, the concern about this language is much more broad that just US Citizens. I can provide the suggestion that people aren't going to be outraged if an non-citizen actual terrorist is nabbed by the military and detained indefinitely. I would suggest that people are rightly concerned about US Citizen being part of a witch hunt by the government under the label of terrorism. (Not an invalid concern given our governments history)
The president has unilateral authority to demote/fire any officer or enlisted in the military.
Neither congress nor civilian courts have any say in the matter.
This authority is established in the constitution.
The military has to do what the president say.
If not, the president can use the US martial service and other agencies to have any member of the military arrested and detained. Officers and enlisted are not entitled to trial in public courts.
Oh yeah John I am w/ you there...but it's that very fact- the whole Americans won't be worried about it- that caused me to post my comment in the first place. We should take pride in our judicial system and if our judicial system is flawed to the point that we cannot take pride in it (meaning beyond the inevitable flaws that come from all mechanisms) then it should be our duty as citizens to fix it in whatever way we can. The same goes w/ our military, our law enforcement, and our legislatures. The fact that people would be concerned about a US citizen being detained illegally first does not upset me. But the fact that this would be the only concern does. I guess maybe I am naive in thinking that American can and should have a criminal justice system, a military, and a government we can all be proud of? Now I am depressed.
With due respect to the president and his authority under the constitution, he cannot hire/fire military members on a whim. True, he is the commander in chief, but he can't just "kick out" some random guy with no justification.
Nor does the military have to follow his orders without question. They are required to obey lawful orders and disobey unlawful orders, and to know the difference between those things.
My enlisted oath, when I was in the military was "...I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice."
Note the comma and the method by which I obeyed orders...according to regulations and the UCMJ.
Violating a federal law is justification for detention / termination of the military. This does include the death penalty and indefinite detention (used with confederate officers in the 1860s).
Military officers and enlisted do not have protection from the bill of rights or constitution. They are covered by a whole different set of laws.
Military does not use public court. Whole separate system. There are many ways to describe "execution" that sound somewhat innocent.
The president has the ultimate authority in the UCMJ.
Military cannot interfere with civilian activities inside US borders without violating the law, which carries harsh penalties unless authorized by the president. That kind of presidential order is one of the few things that would trigger impeachment that would most likely have bilateral support (the whole Clinton thing was a farce).
Federal employees (civil service) fall into a grey zone. They are designated military when traveling for official US business outside the US but civilian otherwise. Some civil service workers are authorized to wear a US military uniform when traveling in/near hostile countries to use geneva convention, but have no actual rank. Treaties prohibit detention of "diplomats" by foreign countries, so a US government passport is equivalent to a get-out-of-jail-free card.
US military are exempt from customs at border crossings for all treaty nations. Officers at certain rank can extend temporary military treaty authority to federal civilian employees.
Ambassadors and marines located at US embassies can be somewhat harsh when federal employees and military mess up, so it is not a good idea to get into trouble. They are likely to hand you to the locals if you become intoxicated or carelessly injure someone unless you have an important relative.
So ... what's my line?
After 21 years in the military, I am well aware of the UCMJ. I am also aware that it didn't wholly supersede my constitutional rights. While it is true that military service reduces those rights and protections, it doesn't eliminate them in totality.
What's my line? Refering to the old game show? Hmmm...my 1st guess of your employment is... contractor overseas for the military or an embassy.
Section 1031 of S1867 states that US military can detain persons pending disposition under law of war; Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force (copied from Sec 1031). The "global war on terror" includes US according to previous administration, thus the PATRIOT Act. Basically this bill is saying since we are now at war globally, the laws of war go into effect.
In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict. Under such "war rules," unlike during peacetime, an enemy combatant can be shot without warning (unless he or she is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial.
Senator Mark Udall tried to propose an Amendment - which included the language "under the Constitution of the United States" - that was voted down yesterday. Here are a portion of his comments before the vote:
Look, I agree if an American citizen joins al-Qaida and takes up arms against the United States that person should be subject to the same process as any other enemy combatant. But what is not clear is what we do with someone arrested in his home because of suspected terrorist ties. These detainee provisions would authorize that person's indefinite detention, but it misses a critical point. How do we know a citizen has committed these crimes unless they are tried and convicted? Do we want to open the door to domestic military police powers and possibly deny U.S. citizens their due process rights? If we do, I think that is at least something that is worthy of a hearing, and the American people should be made aware of the changes that will be forthcoming in the way we approach civil liberties. But since our counterterrorism officials are telling us these provisions are a mistake, I am not willing to both potentially limit our fight against terrorism and simultaneously threaten the constitutional freedoms Americans hold dear."
Here's the problem when you get into the international laws of war. The terms enemy combatant, lawful combatant, and unlawful combatant, are defined quantities, each subject to somewhat different standards of detention and trial.
One must be careful to identify persons detained accordingly and thus give them their just rights under the law.
The blurring of these definitions by the Bush administration with regard to the Gitmo detainees, al-Qaeda, and terrorists generally...both in the application of the Patriot Act and in it's execution of the War on Terror under the international laws of war has created this murky cess-pool of legality about detainee legal status and rights. The language in section 1031 only clouds the issue further, and puts us further down the road we are already on.
It is something to be seriously concerned about on several levels.
Hi John,
Not a contractor. Civilian military in charge of contractors. Retired.
Good guess.
Engineer in charge of development/maintenance of complex military radar/combat systems (whatever it takes to develop/test and keep things working). Responsible for several UFO incidents. Not proud of that, but very funny to watch on TV.
Temporary duty as civilian military advisor on several occasions. Multiple trips to Europe. They've been dealing with terrorism for over 100 years.
Very different environment. Europeans hate muslims, and things just spontaneously blow up from time to time. Would be nice if we could be smart enough to avoid most of those problems.
Who is this person and what has he done with the Barack Hussein Obama that has been in the White House for the last three years?
Aliens?
Is there anyone else out there that is sick and tired of having rights and liberties taken away with "fear based" logic and big brother reasoning? I'm not buying it, and I'm ashamed of our Senate for voting for this....ashamed or disgusted? Please, please Mr. President VETO.
I agree with you completely!
Here's a link to the original text of the bill (pdf) that includes section 1031. Still not clear whether indefinite lifetime detention by the military is applicable to american citizens under the given definitions.
It could be interpreted that way. This guy constructs a cogent argument about it.
It's easy, if it can be you can guarantee it will be.
I really hope the President sticks to his guns this time! Talk about "BIG GOVERNMENT" - this denigrates all of our flowery speeches about "freedom & the rights of US all"!!
This is BIG BROTHER & WE should ALL be AFRAID, VERY AFRAID!!
The Patriot Act does away with almost the entire Bill of Rights.
The Patriot Act had an illicit relationship with the Freedom of Information Act to produce offspring like the following (click the links to get the joke).
Some of the outcomes are unintended but inevitable.
Getting rid of the entire Patriot Act is an IQ test, and so far, we are failing.
What kind of idiot would pass a law that puts your house location on the Internet so that the terrorist can look you up?
And Republicans want more of that?
Really?
The Patriot Act didn't go far enough?
And democrats apparently, Levin wrote the thing, and got 14 of his fellow democrats to vote for it.
The avarice for power isn't restricted to just one party.
The thing Levin co-sponsored was a 3 month extension, not the actual PATRIOT act.
He did this to allow time to restore civil liberties without scrapping the whole thing at a time when Republicans controlled both houses and the presidency.
Where are you getting your information?
From the washington post article linked above and from this opinion piece by Udall.
"Two of my colleagues on the Senate Armed Services Committee, Chairman Carl Levin (D-Mich.) and ranking Republican John McCain (Ariz.), argued on this page Monday for controversial provisions they authored in the National Defense Authorization Act aimed at addressing those questions." (emphasis mine)
John-2416054, if I'm missing something, then please correct me.
The PATRIOT Act and National Defense Authorization Act do not repeal Posse Comitatus or section 9 clause 2 of the US Constitution.
Habeas corpus must be suspended before the US military is allowed to operate inside states, commonwealths, and territories. That is called "martial law".
Writ of Habeas Corpus is entitlement to trial. Posse Comitatus prohibits military arrest.
The Posse Comitatus Act prohibits active duty military from enforcing US law inside any states, commonwealths, and territories of the US. This link might be helpful.
I used to do this for a living.
I'm not sure much has changed with the exception of surveillance and privacy, which nobody seems to be complaining about.
Everyone deserves their day in court and not a military court, our generals do not and should not have this kind of power or like Egypt , they will never give their power back to the public the people who pay their salaries and supply them with arms and a lot more benefits also.
God bless you, Sen. Franken. Mr. President, PLEASE VETO!
I miss the America that would never have even THOUGHT of this idea. I am saddened at a GOP that is willing to do whatever it takes to destroy our nation. My guess, we have been divvied up.
I would bet that we will be seeing Margaret Atwood's Gilead, after the martial law. We all have been making some huge mistakes, and one of the largest is buying the produces that our corporate masters put out there, such as Bud beer, Frito Lays chip, and iPhones, that will show a man where to get Viagra but refuse to show women where to get birth control.
Yeah. Jobs was a saint (not).
If We, the People, really want our nation back, we have got to stop buying the products they make, and the stores that support them, like Target and Wal-Mart.
Buy local, buy handmade and buy from small biz. NOT from those who are contributing money to the Right wing's desire for a fascist state.
I'm still amazed that Minnesota would vote in Michelle Bachmann AND Al Franken! Talk about schizoid! Also elected Paul Wellstone and Jesse Ventura. What IS it about MN?
Notice how everyone is asking, pleading, begging Obama to do what he's said he will do and veto this bill? We are to that point. Obama says he will do something, and we all hold our breath hoping he will do what he's promised. It's come to that. I'll believe this veto when I see it. Same goes for anything else Obama says he'll do.
At least we're still holding out hope for him to do it, If it were up to any of the GOP presidental candidates I would know it would be a lost cause.
This is the land of the free and the home of the brave? A group of fanatics attack us and ten years later we still have an emergency that allows the government to simply call anyone a terrorist and lock them up and throw away the key?
When the next group of protestors come out will they be deemed terrorists? Seems a little over reacting you say? I never thought it would be OK for the US to torture people either.
Go Al Franken!! Never have we needed so much to ramp up the progressive message. Agree that Al needs to take up the leadership reins.