Americans shouldn’t be detained indefinitely


Heath Haussamen

Civil liberties are the foundation of our democracy. In the debate over whether our military should be able to detain Americans without charge or trial, we must err on the side of protecting our due process rights, and protecting ourselves from our government

Does a bill Congress approved last week allow the U.S. military to detain American citizens indefinitely without charging them or taking them to trial by labeling them terror suspects? Some say yes, others say no.

I’ve spent the last few days researching the issue to try to figure out who’s right. As far as I can tell, there’s genuine disagreement about whether provisions in the defense-funding bill would allow the indefinite detainment of Americans.

And if there’s genuine disagreement, I believe some president will someday err on the side of taking away an American’s due process rights – which is why Congress and the president must now err on the side of protecting Americans’ civil liberties.

Sadly, Washington doesn’t appear to be headed in that direction.

 A confusing debate

Last week’s debate was among the more confusing in Congress that I’ve ever followed because of the legal complexities and the insistence by both sides that the other was wrong. By the end of it all, we had U.S. Rep. Martin Heinrich, D-N.M., voting against the bill and releasing this statement to explain:

“…the Defense Authorization bill was used as a vehicle to authorize the military to go anywhere in the world to imprison anyone suspected of terrorism — even American citizens on U.S. soil — without charge or trial. By mandating military detention of suspected terrorists, this law places additional responsibilities on the military that they have not sought, nor have the resources to carry out, compromising our national security.”

And we had U.S. Rep. Steve Pearce, R-N.M., vote for the bill and releasing this statement:

“The bill does not, in fact, give the military the right to detain U.S. citizens indefinitely. Instead, the language of the bill explicitly states that U.S. citizens do not fit the criteria for who can be detained by the military. In the event that a U.S. citizen was arrested on suspicion of terrorist activities within the U.S. or on the battlefield in Afghanistan, they would go to civilian court and face criminal charges.”

Sen. John McCain, R-Ariz. and a supporter of the legislation, said he’s rarely seen a bill “so consistently misunderstood and misrepresented.” He called the “hyperbole” used by opponents on the left and right “false and misleading.” The ACLU, on the other hand, stood firm in its opposition, along with a group of progressive Democrats and libertarian Republicans. The ALCU said the bill would mean “No corner of the world, not even your own home, would be off-limits to the military.”

The ACLU also complained about the fact that “the entire Senate bill was drafted in secret, with no hearing, and with committee votes behind closed doors.” Frankly, that secrecy is among the reasons I err on the side of the ACLU.


The arguments

Before I came to side with the ACLU, however, I asked Pearce’s spokeswoman to explain his stance. She pointed to these provisions in the bill:

“Nothing in this section (1021) shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

“…The requirement to detain a person in military custody under this section (1022) does not extend to citizens of the United States.”

Simple, right? Not really, according to Andrew Stoddard, a spokesman for U.S. Rep. Ben Ray Luján, D-N.M., who voted against the bill. Here’s what Stoddard told me:

“In Section 1021, U.S. citizens are not exempted as they are with Section 1022. Section 1022 does have a constitutional limitation built in for persons picked up in the United States. Section 1021 does not have any such limitation. Section 1022 is limited to persons picked up in the course of hostilities but there is no such limitation in 1021. In short, the indefinite detention authority in 1021 is so broad, vague, and ill-defined that it could very well reach into the United States (emphasis mine).

“The language that Rep. Pearce’s office cited in section 1021 was an amendment that purportedly limited the section’s authority to what is available under ‘existing law,’ although it is not clear that existing law protects United States citizens or exempts the United States from the detention authority. The Supreme Court has already held in the Hamdi case that a United States citizen may be held if picked up on the battlefield. Federal circuit courts have upheld the authority of the military to hold individuals picked up in the United States. This leaves it up to the courts rather than adopting explicit protections against the arbitrary use of military authority.”

You can read the full text of the bill here.

NM’s senators concerned about detainment provisions

Both of New Mexico’s U.S. senators voted for the defense-funding bill, but both expressed concerns about the detainment provisions and support legislation to clarify that they don’t apply to U.S. citizens.

U.S. Sen. Jeff Bingaman, D-N.M., said in a news release that he voted for the bill because of the importance of its funding provisions to New Mexico and to America’s troops, but he “continues to have serious concerns” about the detainment provisions, in part because the bill “does not make clear that Congress intends to exclude American citizens.”

A spokeswoman told me U.S. Sen. Tom Udall, D-N.M., believes that, though the U.S. Supreme Court has upheld due process rights that protect U.S. citizens from indefinite detainment without trial, “it is better to unambiguously write them into law.”

During Senate debate on the bill, Udall voted for four amendments “to beef up those provisions in the bill, and while one was ultimately adopted, he is still working make the law crystal clear in this regard,” Marissa Padilla said.

Last week, Udall and a group of Democrats and Republicans in the Senate introduced legislation that would, according to its title, “clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States.”

Bingaman said he “will continue to support efforts to revise these provisions as Congress discusses detainee matters in the future.”

Voting against defense spending isn’t easy to do

One thing that got my attention as I researched this issue was the impressively bipartisan makeup of the group of lawmakers who opposed the detainment provisions and, as a result, voted against the bill. Voting against defense spending isn’t easy to do, especially for lawmakers like Heinrich and Luján, whose districts include lots of jobs funded by the defense bill. Even as he seeks the Senate seat being vacated by Bingaman next year, Heinrich took a principled stance that won’t benefit him politically.

Republicans including Sen. Rand Paul, R-Ky., joined those Democrats in their opposition.

Their complaint seems to boil down to a belief that the law is currently unclear about the detainment of Americans, and this bill strengthens the military’s ability to detain indefinitely without clarifying that it doesn’t apply to Americans.

The Obama administration and others, meanwhile, argue that federal law already allows the indefinite detention of U.S. citizens.

In my mind, if there’s any chance the bill leaves open the possibility of this or a future president interpreting the law to justify the indefinite detainment of American citizens, then there’s a good chance we’ll eventually have a president who will do just that.

Based on the position of the Obama administration, it appears we already do. That’s not surprising, given that Obama already ordered the assassination of an American citizen. I didn’t think our laws could be interpreted to justify that, either.

‘A dangerous game’

We should be concerned any time there’s a grab for greater power by or for law enforcement or the military. The government’s assassination of an American should concern us. 20 police shootings in 20 months in Albuquerque should concern us. The refusal of officials in Las Cruces to release a report they say backs up a cop’s decision to shoot and kill a civilian should concern us. The pepper-spraying of college students at UC-Davis who were sitting peacefully with their arms linked should concern us.

And the chance that a president might order the military to indefinitely detain Americans deemed terror suspects should concern us. Once you find a reason to justify indefinite detention of an American once, it becomes easier to do it again. And again. And again, eventually for less-justifiable reasons.

Assassinating Anwar al-Awlaki in Yemen may have seemed reasonable. He was undeniably a terrorist involved in a group that killed Americans. But now that there’s precedent, we’re on a slippery slope. We’re apparently headed down the same slippery slope with the indefinite detention of Americans deemed terror suspects.

Paul summed up the concern nicely:

“If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game.

“The FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of ‘Meals Ready to Eat,’ weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color. I fear that such suspicions might one day be used to imprison a U.S. citizen indefinitely without trial. Just this year, the vice president referred to the Tea Party as a bunch of terrorists. So, I think we should be cautious in granting the power to detain without trial.”

America has indefinitely detained foreigners who were labeled terror suspects but weren’t actual terrorists. It’s reasonable to assume that, given the FBI’s criteria, many of us have the potential to show up on a subjective terrorist watch list. Will I someday end up on the list for writing something critical about a government official? Will this commentary land me on that list?

‘Shut up. You don’t get a lawyer’

The concerns about the indefinite detainment of Americans are justified by the words of Sen. Lindsey Graham, R-S.C., who supports the provisions and says the bill puts into law for the first time “that the homeland is part of the battlefield.”

“It is not unfair to make an American citizen account for the fact that they decided to help al-Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham was quoted by the Christian Science Monitor as saying. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

Since when does our government get to decide which of us have due process rights and which don’t? That’s not the intent of the U.S. Constitution.

Sadly, the last statement me from the Obama administration on this issue said the president won’t veto the defense bill. The president’s initial objection seemed to be that the bill took away his discretion to decide when to send in the military on American soil instead of letting civilian law enforcement handle a situation. There doesn’t appear to be question in his mind about whether he has the authority to detain Americans indefinitely.

That’s just one more reason to be concerned.

Civil liberties are the foundation of our democracy. We must err on the side of protecting them. Does the bill co-sponsored by Udall have a chance of becoming law? If not, we may need a citizen-driven effort to pass a constitutional amendment to protect Americans from their government.

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14 thoughts on “Americans shouldn’t be detained indefinitely

  1. The NDAA bill provides for indefinite detention of “any person who has committed a belligerent act” (See section 1031 (b) 2 of s1867 (National Defense Authorization Act of 2012). The term “belligerent act” is extremely wide and could apply to any form of resistance including protesting in the streets or even speaking out against the U.S. government.  Both Sen. Jeff Bingaman and Sen. Tom Udall voted YES for this bill. Rep. Steve Pearce voted YES for the house version (HR 1540).  Jeff Bingaman, Tom Udall and Steve Pearce are TRAITORS to the U.S. Constitution and the Bill of Rights. 

  2. Remember, New Mexico and most of the United States is the same place where people can be falsely accused, have their lives ruined and watch their lying accusers never be held accountable even after the false charges have been dismissed in a Court of Law and proven beyond a doubt to have been lies to begin with…
    And to think of all the innocent people who have been put to death…

  3. So, where’s the accountability for Obama on this?  

    Gotta admire his chutzpah

    running against war then starting a few.
    selling war to the Nobel peace prize committee 
    brandishing his credentials as a constitutional scholar, then eliminating the right to trial
    conducting secret war by the CIA in Iran and Pakistan

    Most decent citizens are ashamed of their government



  4. Human Rights: I don’t care what you think
    Geronimo. — 12/20/11 9:16am

    I don’t care what you think about whether or not the detention clause in NDAA applies to Americans, it shouldn’t apply to anyone; no human being should ever be held indefinitely, or without the right to a fair trial

    Our constitution and the rights enshrined there-in are very carefully and very deliberately granted to all, NOT just citizens. All human beings require fair treatment not just ‘our team’.

    The Bill of Rights grants no rights.
    It restricts the government from infringing on rights that are presumed already there. And the word “citizen” isn’t used.

    9/11 may have changed a lot, but it shouldn’t change everything. Respect the rule of law. Respect the Truth.

  5. “I recently engaged in a chance, friendly conversation with a man from Algeria which I will share with you.  He was very upset when I told him about NDAA, the new law allowing indefinite military detention of US citizens without charge or trial.  He said he had come here to get away from that sort of thing, which had happened in his country and was fresh in his mind.  His description of what happened in Algeria during its equivalent of Argentina’s “Dirty War” was chilling and he kept shaking his head about the new law here, visibly distressed.
    Basically what he said was that the next step is a large number of people, it was 50,000 in his country he said, will disappear without a trace.  The government will do it to instill fear in everyone else and to show they can do it, and get away with it, so everyone else is much easier to manage.  It will not matter whether you are rich or poor, on the left or on the right, a university professor, a doctor, or if your father is a rich businessman.  It simply won’t matter.  Your family will go to the police station to file a missing persons report but they will not be able to help you.  Left or right doesn’t matter, it is anyone with strong opinions who can express them who are the threat.
    Everywhere you turn there will be a brick wall.  No one knows anything, yes it has been happening a lot, and no one can help.  It will be as if you had never existed.”
    Thomas Jefferson said: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” By violating their Oath to protect and defend the United States Constitution, these senators have made themselves “domestic enemies” of the Constitution, and can no longer be said to represent us.” 

    Please watch this UTUBE.!

  6. I agree, Heath,  This is some scary stuff and not to be taken lightly.  You said at the end, “…we may need a citizen-driven effort to pass a constitutional amendment to protect Americans from their government.”  That shows how far our system of government has fallen because that is the whole intent of the Constitution and Bill of Rights.  Those were written to restrain the power of government and protect citizens from the government in the first place.

    Heath’s blog discusses a major concern that deals with the ongoing erosions of our constitutional rights, but is only the tip of the iceberg. 
    An 18-month review by the ACLU of the Obama administration’s record on national security issues affecting civil liberties resulted in a mixed review.  The report concludes Obama made significant strides in prohibiting torture, ending secret detention sites run by the CIA, and prohibiting torture.  However, the report is critical of the administration’s failure to deal with military commissions and indefinite detention, and continuing the Bush administration’s “targeted killing” program.
    The Patriot Act, for example, was renewed for another four years, but it has come under scrutiny and criticism as it has apparently given law inforcement and national security agencies a freehand to decide how to apply the provisions of the act.
    For example, a Microsoft official stated earlier this year that any data held by a US company is not protected from the Patriot Act, and such data can be demanded by US authorities.
    US government agencies requests under the Patriot Act to Google for user search information doubled over the last year and are nearly 100% complied with according to the Google Transparency Report.
    And now, there’s ample evidence that much of our law and governmental policy is being made in secret, again contrary to the intent of the Constitution.  Interesting reading on Washingtons Blog, “We’ve Gone from a Nation of Laws to a Nation of Powerful Men Making Laws in Secret”.
    Patrick Henry said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government.”  But it appears the Constitution is becoming meaningless as laws and judicial interpretations infringe on our rights for due process and privacy.  Many examples are given on credible internet news sites and blogs.
    The problem is, once a law or procedure firmly establishes itself, it is difficult to remove it; thus, the weakened state of the Constitution will continue and may get worse.

  8. Native Americans are especially vulnerable to indefinite detention.  Did anyone listen to today’s Native American Call In on public radio at 11:00am today?  Natives are staging a protest walk on behalf of Leonard Peltier and are currently being harassed by the FBI.  It was chilling.  We are all also aware of the FBI infiltrating peace activists such as meetings of the Quakers.  Now, this suspicious law to indefinitely detain on the heels of the OWS movement is terrifying.  Remember that you heard it from me that the day that the government conflates terrorism with the War on Drugs will be the day that our government goes to war with it’s own people.  Given the evil profit incentives of the for profit prison industrial complex in our nation, locking up populations is making the 1% rich on human misery.
    Also, what is this business of indefinite detention for anyone anywhere in the world?  Here we go again with the United States of America policing the entire world.  What does it take to understand?  WE ARE BROKE.  All this world policing and sticking our noses in everybody’s business is being done on the credit card.
    Look, you all know that I am a Liberal but, please change your voter’s registration to Republican and vote Ron Paul even if you intend to vote for Obama.  The people need to use this election to send a Libertarian message.  It has become more important than ever to rein in the power of our government and re-affirm our Constitution and Bill of Rights.
    Also, this is what I wrote at DFNM.

    Where were our Senators with their secret filibusters? It just would have taken one senator to filibuster this dog. Why don’t our politicians of principle play hardball when it comes to defending the people’s Constitution and Bill of Rights? Where is that obstruction when we need it?What is Udall’s and Bingaman’s justification for voting for this?Thank you Representative Heinrich for standing up when it matters.
    Now, Sen. Udall has brought forth a bill to clarify that American citizens will not be subject to detention without trial but, watch the obstruction machine of the secret filibuster kick in with that.  And, there is the House of Representatives taken over by the crazies paid off by the bribes from the prison industry to consider.  Sorry but puffed up flapping is not the same as striking with the spur into the opponent’s breast.  

  9. Dictatorships, like the Soviet block of old, are notorious for labeling political gadflies “enemy of the State” to imprison them indefinitely and without trial.  The U.S. at present holds the greatest number of its citizens behind bars of any nation, both in relative (per capita) and in absolute (total number) terms.  So why should we be surprised that our political establishment is set to violate the constitution once again–this time by imprisoning whomever the hell it wants (citizen or not) without trial and for as long as necessary?  We can be wiretapped now for any reason, subjected to pornographic x-rays and pat-downs at airports, and get beaten half to death by police officers dressed in military garb pretty much at will, and all of this in the name of “homeland security.”  Are you feeling secure yet?

  10. This is the real danger of bipartisanism. When the stupid party and the evil party get together and agree on something, you can count on it to be both stupid and evil. The left wing and the right wing are both wings of the same bird of prey, and regular Joes like us are the mouse.
    I know this isn’t a description of everybody, but on the left they usually care about social liberties, but not economic liberty. On the right, they tend to care about economic liberty, but not social liberty. Neither side cares about personal liberty.
    This idea that you can have piecemeal liberty is antithetical to human nature. If you are allowed to associate with whom you choose, but the government has their hand too deeply in your pocket, they’ll use that the take away your other liberties. Conversely, if you are free economically but not free in other ways they’ll use the lack of other freedoms to get their hand into your pocket deeper.
    The right talks about keeping the government out of your wallet, and the left wants the government out of the bedroom, but in either scenario they’re already in the front door. The trick is to keep them out of your whole house. Keep them out of your bedroom, out of your computer and filing cabinet, out of your gun safe, out of your wallet, out of your kitchen and out of your TV set.
    I forget who said it, but a leader in the Libertarian Party said his biggest challenge was to “get the gun guys to work with the drug guys, and vice versa”.
    If you’ll respect my right to keep and bear arms, to believe as I do and spend the fruits of my labor as I see fit, I’m fine with letting you marry who you want to marry, etc. I wish more people would respect everybody’s rights and not let the powers that be divide and conquer us.

    Will I someday end up on the list for writing something critical about a government official?
    It does not need to be writing.  It can just be a disgruntled (jealous) law enforcement officer that uses his position of power to contact the FBI and then Customs and make an allegation of suspicious activity.  In route to Spain, an assistant and I were stopped on the gate ramp to the airplane and detained by a warrantless search for three and one-half hours with the passengers sitting in the plane awaiting take off. The search found nothing illegal. After that, I could not come back into the US without being flagged and searched.  Finally Freedom of Information Act documents revealed to me the source of the allegation, but to my surprise removing the false information seemed not to have an effective procedure.  Order a FOI on yourself and see how much is redacted and who the government says you are.  You might be surprised what your government says about you.
    Further, one of our oldest rights, a writ of habeas corpus, has been so procedurally weakened by legislators that it really does not allow US citizens to effectively challenge wrongful or illegal detention.
    “But in truth the president has unquestioned authority to detain enemy combatants, including those who are U.S. citizens, during wartime.  Ex Parte Quirin (1942); Colepaugh v. Looney (1956); In re Territio (1946)…Hamdi v Runsfeld (2002).  The authority to detain enemy combatants flows primarily from Article II of the Constitution.” Men in Black by Mark R. Levin.
    I don’t think we need a constitutional amendment as the First Amendment gives the US citizen the right of redress.  However, that right seems to be lacking in effectiveness as the state or federal government actor carries “immunity” for their actions if they state they were acting in good faith.  It is the immunity of our government actors, including judges, that needs to be removed in my opinion, not an additional amendment.  Heath is right, however and whatever we need protection from our government.

  12. I couldn’t agree more Heath.  And Americans shouldn’t be murdered by the military and government in assassinations by drones without benefit of due process of law either, but Obama has no problems with that either.  People need to take a look at what is going on here these days, it is very bad for our Constitutional rights.

  13. It seems to me that this is another example of what we get when our legislative candidates get money from special interests instead of having their campaigns financed by US, the people.  Ben Franklin said it best:  “A stitch in time saves nine.”  If we hold the pursestrings, we can keep our politicians under our thumb at all times (hpefully), and focus on how thrifty they are with the campaign money we give them instead of the red herrings they use to distract us.