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.