The Defense Authorization Bill : Only Hope is the Udall Amendment

Unfortunately, the Senate is scheduled to vote Monday or Tuesday on the 2012 Defense Authorization bill with the horrible detainee provisions. The bill is a primer for indefinite military detention until the end of time, considering it encompasses more than al Qaida and the war on terror is endless. It gives the military total control over detainees.

Sen. Levin and McCain are pushing for a vote on new Amendments for Monday evening. The bill is S. 1867, introduced on Nov. 15. You can read or skim the 682 pages here. The detainee matters are in Subtitle D, starting on page 359 with Section 1031. They go through page 378 and Section 1037. The Congressional Record for Nov. 18 has the most recent events, including a statement by Sen. Levin as to why he thinks the Levin/McCain Amendment is more than fair and the Administration's objections are unfounded.

There are dozens of pending amendments, including the most important one by Colorado Sen. Mark Udall, who explains his amendment here [More...]

The text of Udall's Amendment is here. Essentially, it would strike the detainee provisions and instead insert a timetable to come up with a new plan.

Here's the action page to tell your senator to vote for the Udall Amendment.

The time has passed for "tweaks" to the provisions. The best course now is for Udall's amendment to pass and for nothing to be included in the Senate bill on detainees.

Two Amendments that really needs to be defeated are Sen Collins #1158, making Guantanamo transfer restrictions permanent and Sen. Infofe's Amendment #1093, requiring long term detention at Guatanamo, which he calls "the single greatest repository of human intelligence in the war on terror."

Here is the White House position (as of 11/17, days after the Levin/McCain compromise was introduced.) It didn't threaten a veto of the entire bill -- it said only that Obama's advisors would recommend a veto.

The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012. ....Any bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.

Those holding out hope for an Obama veto are likely to be disappointed....again. Obama also opposed the detainee provisions in the 2011 bill The Ike Skelton National Defense Authorization 18 Act for Fiscal Year 2011.) Yet he signed it anyway, explaining:

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Levin/McCain make a big deal of how their bill doesn't "mandate" certain treatment or strictly prohibit transfers of detainees to other countries. While Section 1033 repeals the 2011 version on prohibition on detainee transfers to foreign countries, it replaces it with an overly complicated certification process allowing some exceptions. Even Levin doesn't seem sure of who certain sections of his bill covers or who is included under current law. From Levin's statement in the Congressional record on Najibullah Zazi (a permanent resident alien:)

It is not accurate to say everything the FBI did in the Zazi case would have had to be ``transferred immediately to the military.'' First, it is not at all clear Zazi was covered by the provision because we don't know that he was al-Qaida, and in any event there is an exclusion because he is a lawful resident alien of the United States.

Second, until a coverage determination was made, no transfer would be required and the President would decide how and when that determination would be made. Finally, even if Zazi were somehow determined to be covered, the requirement could have been waived and Zazi could have been kept in civilian custody in the discretion of the executive branch.

If the Senate bill passes, it still has to go to conference with the House Bill that passed in May.

The New York Times explains the uncertainties in the McCain/Levin compromise over charging and holding American citizens here. An October letter from Feinstein, Leahy, Udall and other Dems on the uncertainty is here. Rep. McKeon, chair of the House Armed Services Committee, who is leading the House on the issue, pooh-poohed Obama's concerns in this October 20 letter.

The ACLU says:

“The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world. The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself.”

The ACLU is right, and it's no accident the bill was written that way. Read through the Congressional Record debate, letters and statements, and you'll see how important it was to them that people alleged to be al Qaeda not be given trials or constitutional rights, especially Miranda rights, even if seized in the U.S. Here's Sen. Lindsay Graham explaining:

No one in America is going to be held as an enemy combatant who doesn't get their day in Federal court. But their day in Federal court is a habeas proceeding, not a criminal trial. If the judge agrees with the United States that you are, in fact, an enemy combatant, then you can be held indefinitely, but we require an annual review. If the judge lets you go, they have to let you go. This is the best we can do. This is a hybrid system.

In no other war do you have access to a Federal court. As I said before, this is war without end, and if we don't watch it, an enemy combatant determination can be a de facto life sentence because there will never be an end to these hostilities probably in my lifetime. I recognize that. And in working with the Senator from Michigan and Peter and others, we have come up with a process now that allows the Federal court to review the military decision.

Later he adds:

Here is the thought process for the body and the Nation: If you capture somebody--not just involved in terrorism; that is not just what we are talking about--al-Qaida operatives involved in an attack on the United States, if they are an American citizen--who cares?--if they are doing that, we want to know what they know, interrogate them and hold them for prosecution, or just hold them so they will not go back to the fight. That is the law (my emphasis)

.....what we have been able to do on the committee is basically say, in law for the first time, that the homeland is part of the battlefield; that military custody is available to hold a suspected al-Qaida operative caught in the United States--American citizen or not--but we are going to allow the administration--this administration and all future administrations--to change that model if they believe it is best?

As if it's not clear enough, he adds later:

Quite frankly, the Congress is saying, through this bill, if someone is caught in the United States, citizen or not, joining al-Qaida, trying to do harm to our Nation, we are going to create a system where you can be held, you can be prosecuted, you can be interrogated within our values, and we are not going to create an absurd result that if you make it here, none of that applies. That is all we are trying to do.

He also says we have the right "hold someone under the law of war for years to gather intelligence."

Again, Levin and McCain are pushing for a Monday night vote on the Amendments:

I agree with my friend from Arizona that we should ask the majority leader to make Monday night available for votes after the scheduled vote at 5:30. We need to have votes on amendments. I would hope that amendments that can't be agreed to will be voted on on Monday night after the vote on the judge, which is scheduled for 5:30.

We need a name for this year's turkey of a bill. How about the Captain Underpants- Najibullah Zazi- Korematsu Indefinite Military Detention and Star Chamber Renewal Act?

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  • Display: Sort:
    Are these people intentionally creating (5.00 / 2) (#1)
    by observed on Sun Nov 27, 2011 at 08:52:23 PM EST
    a tyrannical state, or are they clueless?
    I think the former.

    "This is war without end" (5.00 / 1) (#10)
    by BobTinKY on Mon Nov 28, 2011 at 07:24:17 AM EST
    No one should vote for any politician who says or believes this.  It is there job to end this war not perpetuate it.

    What's their plan for ending it?  They're not even thinking about how to end it for that would require renouncing empire.

    These people like Graham are not thoughtful & serious, they are insane warmongers.

    From what is going on it appears (5.00 / 2) (#13)
    by MO Blue on Mon Nov 28, 2011 at 09:16:52 AM EST
    that not only did G. Orwell get the year wrong, he was an optimist.

    Tell me again how the Democratic Party is protecting me from attacks on civil liberties and why they exist.    

    They're not (5.00 / 2) (#15)
    by Zorba on Mon Nov 28, 2011 at 10:22:12 AM EST
    protecting us.  
    Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
     Benjamin Franklin

    I just emailed my two (Democratic) senators to oppose the detainee provisions and support the Udall Amendment, and I also sent another donation to the ACLU.  


    I think (5.00 / 0) (#16)
    by Edger on Mon Nov 28, 2011 at 10:54:50 AM EST
    you need a million people in the streets.

    To surround and levitate the Capitol Building.


    Well ... (none / 0) (#14)
    by Robot Porter on Mon Nov 28, 2011 at 10:01:11 AM EST
    Tell me again how the Democratic Party is protecting me from attacks on civil liberties and why they exist.

    Clearly, they aren't.  And this is probably the primary reason I find it so difficult to still support the Democratic Party.

    In school we're all taught that the "Alien and Sedition Acts" represent a dark period in the early history of our country.  But these current provisions are in most ways (almost all ways!) more far reaching than the those acts.

    It's shocking to me how little outrage there is about this.  I may end up switching parties and voting for Ron Paul simply because he's the only person running for President who is against all this.  And I've never been much of Ron Paul fan.  But enough is enough.


    So, I'm reading the administration's (5.00 / 2) (#17)
    by Anne on Mon Nov 28, 2011 at 11:07:43 AM EST
    official statement, and my overall impression is that the administration objects to the portions of the bill that will restrict its ability to do what it wants, when it wants, to whom it wants, and will require it to provide more transparency and accountability than it thinks it should have to.

    Because, God forbid, codification of the broad authorities conferred by the AUMF would "...open a whole new series of legal questions that will distract from our efforts to protect the country."

    We should just trust them to do the right thing, I guess, because that always works out well, doesn't it?

    Honestly, the whole thing just makes me sick to my stomach.  It isn't just the fact of the bill itself, which defies my ability to reconcile with the tenets of the democracy I used to know, but the administration's "butt-out-we'll-handle-this" attitude is - when I am brave enough to consider the totality of the ramifications - horrifying.

    Hate to keep saying this, but when Dems had the power to draw the line in the sand with the Bush/Cheney administration, and refused to do so ( I would say they had failed, but "failure" implies that there was ever an attempt to rein them in, and that just never happened), they normalized the actions of the Bush administration, and gave permission for future presidents to keep it going - and now that it's a Democratic administration that seems determined to take up and expand on what Bush did, the lack of pushback, of Dems standing up for basic principles of democracy is unforgivable.

    I wonder how many people know or understand that the administration isn't opposed to this bill, or some of the amendments to it, because it wants to stand as a beacon of democracy and a bulwark against the erosion of constitutional protections and rights, but because it doesn't want Congress getting in the way or holding it accountable.

    Unacceptable and unforgivable.

    Schutzhaft (5.00 / 1) (#22)
    by Andreas on Mon Nov 28, 2011 at 01:27:02 PM EST
    'With the reinterpretation of "protective custody" (Schutzhaft) in 1933, police power became independent of judicial controls. In Nazi terminology, protective custody meant the arrest--without judicial review--of real and potential opponents of the regime. "Protective custody" prisoners were not confined within the normal prison system but in concentration camps under the exclusive authority of the SS (Schutzstaffel; the elite guard of the Nazi state).'

    The Nazis were amateurs (none / 0) (#23)
    by Edger on Mon Nov 28, 2011 at 01:52:16 PM EST
    Greenhorns just playing at fascism like kids with a new toy.

    They didn't have the Nazis to learn from.


    Jeralyn, what are your thoughts on (none / 0) (#2)
    by Edger on Sun Nov 27, 2011 at 08:56:50 PM EST
    SEC. 1032. (b) of the bill?

       (b) Applicability to United States Citizens and Lawful Resident Aliens-

            (1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

            (2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

    I've read other comments saying that while there is some case for distress as to what liberties could be taken with this bill, the loophole for such liberties is incredibly slight. The section is contradictory in its language, even to the point that it restrains itself from what it is proposed to do, but I do not have the legal background to evaluate this...

    As to citizens (sec. 1032(b)(1)) ... (5.00 / 1) (#5)
    by Peter G on Sun Nov 27, 2011 at 09:22:23 PM EST
    to say that something is not "require[d]" by the law does not by any means say that is it prohibited; to the contrary, it would seem that indefinite military detention of alleged "enemy combatants" in the "war on terror" who are U.S. citizens is in fact authorized, albeit not required in every case, by this bill.  Subsection (b)(2) (re: LPRs) is just flat out meaningless.  No statute can authorize anything that is unconstitutional, and simply to say so (which is all that (b)(2) does) is nothing but self-evident, misleading doubletalk.

    Thanks, Peter (none / 0) (#7)
    by Edger on Sun Nov 27, 2011 at 09:30:26 PM EST
    That's pretty close to what I was thinking...

    I've also read comments elsewhere in which people are quoting that section as support for saying there is nothing to see here, move along, no worries, etc... unfortunately.


    You're so droll... (none / 0) (#9)
    by Mr Natural on Mon Nov 28, 2011 at 12:16:25 AM EST
    "No statute can authorize anything that is unconstitutional,"

    Luckily for Americans, getting unconstitutional laws undone by the Supreme Court is a quick, breezy cakewalk, and inexpensive too.

    What makes it even easier, in this special case, is that the lone defenders of our Constitution will probably, if history is any guide, be permitted access to neither their clients nor the evidence - because it's all an uber-national security secret.

    So let's toast this rare display of Congressional cooperation.  Hands across the aisle and all that.

    And another for President Obama.

    Let's Hope he'll Change!


    the defense department (5.00 / 1) (#6)
    by Jeralyn on Sun Nov 27, 2011 at 09:30:19 PM EST
    wrote objecting to the provision (see here at p. 17)

    See also, Feinstein,p. 31 and Levin p. 40
    and Levin, p. 40

    So the law of the land is that if you are captured overseas, even if you are an American citizen, you can be held as an enemy combatant and questioned by our military with no right to proceed to a criminal venue. It is not a choice to try them or let them go. You can hold an unlawful enemy combatant for an indefinite period of time just like you could hold any other enemy prisoner in any other war. But what we have done differently in this war is we have said: Our courts will review the military's decision to declare you as an enemy combatant in a habeas procedure--not a criminal trial but a habeas procedure--as to whether there is sufficient evidence to label you as an unlawful enemy combatant.

    ...the law of the land by the Supreme Court is that an American citizen can be held as an enemy combatant. Like every other enemy combatant, they have habeas rights, but they don't have the right to say: Try me in a civilian court or military commission court, because when we capture someone, the goal is to gather intelligence.

    Levin dances around 1032 some morehere.


    Thanks, Jeralyn... (none / 0) (#8)
    by Edger on Sun Nov 27, 2011 at 09:31:52 PM EST
    sorry (none / 0) (#3)
    by Edger on Sun Nov 27, 2011 at 09:02:05 PM EST
    here is the link to the "other comments" I referred to above...

    Please ignore this (none / 0) (#4)
    by Edger on Sun Nov 27, 2011 at 09:18:05 PM EST
    if I've asked a question that you cannot discuss or address here..

    Well (none / 0) (#11)
    by Edger on Mon Nov 28, 2011 at 08:43:56 AM EST
    It was a nice 230 year experiment for the most part, wasn't it?

    Hmmm ... 230 years .... (5.00 / 1) (#18)
    by Robot Porter on Mon Nov 28, 2011 at 11:10:40 AM EST
    Slavery knocks off about 88 years. That brings us down to 142 years. Women couldn't vote till 1920.  That knocks off another 56 years. Bringing us to 86 years. Blacks didn't really have the right to vote everywhere till 1965. That's another 45 years.  Bringing us to 41 years. Knock off about 8 for the rigged elections in '72 and '00. That brings us to a cool 33 years.

    I could go on ...


    68, 69, (5.00 / 2) (#19)
    by Edger on Mon Nov 28, 2011 at 11:30:27 AM EST
    and a few years in the 70's were ok, I thought...

    So I hear ... (5.00 / 1) (#20)
    by Robot Porter on Mon Nov 28, 2011 at 11:49:16 AM EST
    was an infant in those years, so I wouldn't know first hand.  Not sure about the seventies.  Was in the UK for a bit of it.  And, back in the states, I remember a lot of hamburger helper.  But it definitely felt better, on a freedom scale, than the eighties.  And I think there might be enough good months in the nineties to cobble together a year or so.

    Well generally things were pretty good (5.00 / 1) (#21)
    by Edger on Mon Nov 28, 2011 at 12:03:54 PM EST
    until all the insecure wingnut authoritarians who need somebody to lose so they can delude themselves into thinking they won something got to quivering and peeing themselves in fear and decided that their salvation lies in physically dominating anyone who understands what win-win means so that they could continue to pee themselves in fear forever.

    Security Trumps All for them, I guess... the poor pathetic saps.


    Ok... a few good months, nine to be exact (5.00 / 1) (#24)
    by Mr Natural on Mon Nov 28, 2011 at 07:10:20 PM EST
    - when we hadn't a clue what we were in for.