Update: The Senate has passed the defense authorization bill by a vote of 93-7. According to CNN, as passed the measure includes language that supposedly clarifies the bill’s intent with regard to indefinite detention of American citizens. “Senators ultimately reached an agreement to amend the bill to make clear it’s not the bill’s intent to allow for the indefinite detention of U.S. citizens and others legally residing in the country,” CNN said.
CNN also quoted the bill’s sponsor, Senator Levin, who said the amended language “would provide the assurance that we are not adversely affecting the rights of American citizens in this language.”
Does the U.S. Senate want the military to lock you up if you’ve ever criticized the government?
The answer to that unfortunate question might very well be “yes,” under language included in S. 1867, the National Defense Authorization Act for Fiscal year 2012.
The alarming language of the measure comes under the heading “Affirmation of Authority of the Armed Forces of the United States to Detain Persons Pursuant to the Authorization for Use of Military Force.”
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
Under definition 2, who decides what constitutes support for al-Qaeda or the Taliban or other forces? It seems clear-cut, but consider the future demagogue who will claim that anyone criticizing the government in a time of “war” is guilty of degrading the reputation of the country and is thereby harming the government’s ability to garner support for its war. Could such a person then qualify for military detention under this measure?
Supporters of the language included in the measure say that, in any case, it doesn’t apply to American citizens.
“To be clear: These provisions do not apply to U.S. citizens,” says a press release from the office of Republican Senator Lindsey Graham (S.C.), a supporter of the measure. Graham’s claim is factually accurate. The measure states: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” Note, however, that this language does not explicitly exempt American citizens, it merely states the military is not required to detain Americans. The language, however, does not rule out such an eventuality.
The American Civil Liberties Union (ACLU) is worried about this possibility. In a statement posted to the organizations “Blog of Rights” blog, the ACLU notes:
Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.
The ACLU goes on to quote from Senator Graham who admitted that the measure does indeed mean that military could be used to round up Americans.
According to the ACLU, speaking on the Senate floor, Graham said, section “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
As a measure of just how overtly un-American and totalitarian this measure is, consider that even the Obama administration opposes this attempt to move America another giant step closer to a military police state.
In a letter to the Senate Armed Services Committee on November 17 [PDF], the White House said it favored passage of the full bill, but listed its concerns over the detention clauses. According to the letter, “The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill.”
The letter continues:
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.
The scoundrels chiefly responsible for this totalitarian travesty are Senators Carl Levin (D-Mich.) and John McCain (R-AZ). Yet, as Salon’s Glenn Greenwald notes, there has been plenty of bipartisan support:
…consider how typically bipartisan this all is. The Senate just voted 37-61 against an amendment, sponsored by Democratic Sen. Mark Udall, that would have stripped the Levin/McCain section from the bill: in other words, Levin/McCain garnered one more vote than the 60 needed to stave off a filibuster. Every GOP Senator (except Rand Paul and Mark Kirk) voted against the Udall amendment, while just enough Democrats – 16 in total — joined the GOP to ensure passage of Levin/McCain. That includes such progressive stalwarts as Debbie Stabenow, Sheldon Whitehouse, Jeanne Shaheen and its lead sponsor, Carl Levin.
As a result of the bipartisan totalitarian urge, America is on the verge of taking one more step toward implementation of a police state.
This was the conclusion of Senator Rand Paul, who debated this point with McCain, according to The Hill.
“Should we err today and remove some of the most important checks on state power in the name of fighting terrorism, well then the terrorists have won,” Paul said. “[D]etaining American citizens without a court trial is not American.”
The Moral Liberal associate editor, Dennis Behreandt, is Publisher and Editor In Chief of the American Daily Herald, and former long-time contributor, serving both as Senior and Managing Editor, to The New American magazine, writing hundreds of articles on subjects ranging from natural theology to history and from science and technology to philosophy. Mr. Behreandt’s research interests include the period of late antiquity in European history as well as Medieval and Renaissance history.