{"id":34606,"date":"2011-12-20T07:12:50","date_gmt":"2011-12-20T14:12:50","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=34606"},"modified":"2011-12-21T07:18:00","modified_gmt":"2011-12-21T14:18:00","slug":"americans-shouldn%e2%80%99t-be-detained-indefinitely","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2011\/12\/americans-shouldn%e2%80%99t-be-detained-indefinitely\/","title":{"rendered":"Americans shouldn\u2019t be detained indefinitely"},"content":{"rendered":"<div id=\"attachment_34607\"  class=\"wp-caption module image alignright\" style=\"max-width: 270px;\"><img loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-34607 \" title=\"Heath horizontal\" src=\"http:\/\/www.nmpolitics.net\/index\/wp-content\/uploads\/2011\/12\/Heath-horizontal3.jpg\" alt=\"\" width=\"270\" height=\"256\" \/><\/a><p class=\"wp-caption-text\">Heath Haussamen<\/p><\/div>\n<h4>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<\/h4>\n<p>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.<\/p>\n<p>I\u2019ve spent the last few days researching the issue to try to figure out who\u2019s right. As far as I can tell, there\u2019s genuine disagreement about whether provisions in <a href=\"http:\/\/thomas.loc.gov\/cgi-bin\/bdquery\/z?d112:h.r.1540:\" target=\"_blank\">the defense-funding bill<\/a> would allow the indefinite detainment of Americans.<\/p>\n<p>And if there\u2019s genuine disagreement, I believe some president will someday err on the side of taking away an American\u2019s due process rights \u2013 which is why Congress and the president must now err on the side of protecting Americans\u2019 civil liberties.<\/p>\n<p>Sadly, Washington doesn\u2019t appear to be headed in that direction.<\/p>\n<h3>\u00a0A confusing debate<\/h3>\n<p>Last week\u2019s debate was among the more confusing in Congress that I\u2019ve 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. <a href=\"http:\/\/heinrich.house.gov\/\" target=\"_blank\">Martin Heinrich<\/a>, D-N.M., voting against the bill and releasing <a href=\"http:\/\/heinrich.house.gov\/index.cfm?sectionid=11&amp;sectiontree=2,11&amp;itemid=658\" target=\"_blank\">this statement<\/a> to explain:<\/p>\n<blockquote><p>\u201c\u2026the Defense Authorization bill was used as a vehicle to authorize the military to go anywhere in the world to imprison anyone suspected of terrorism \u2014 even American citizens on U.S. soil \u2014 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.\u201d<\/p><\/blockquote>\n<p>And we had U.S. Rep. <a href=\"http:\/\/pearce.house.gov\/\" target=\"_blank\">Steve Pearce<\/a>, R-N.M., vote for the bill and releasing <a href=\"http:\/\/pearce.house.gov\/press-release\/pearce-votes-defense-funding\" target=\"_blank\">this statement<\/a>:<\/p>\n<blockquote><p>\u201cThe 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.\u201d<\/p><\/blockquote>\n<p>Sen. <a href=\"http:\/\/mccain.senate.gov\/public\/\" target=\"_blank\">John McCain<\/a>, R-Ariz. and a supporter of the legislation, said <a href=\"http:\/\/mccain.senate.gov\/public\/index.cfm?FuseAction=PressOffice.FloorStatements&amp;ContentRecord_id=42bad0e5-978f-9b8b-b74c-845aa6a7e33a\" target=\"_blank\">he\u2019s rarely seen a bill<\/a> \u201cso consistently misunderstood and misrepresented.\u201d He called the \u201chyperbole\u201d used by opponents on the left and right \u201cfalse and misleading.\u201d 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 <a href=\"http:\/\/www.aclu.org\/blog\/national-security\/behind-closed-doors-congress-trying-force-indefinite-detention-bill-americans\" target=\"_blank\">would mean<\/a> \u201cNo corner of the world,\u00a0<a href=\"http:\/\/www.aclu.org\/blog\/national-security\/senators-demand-military-lock-american-citizens-battlefield-they-define-being\" target=\"_blank\">not even your own home<\/a>, would be off-limits to the military.\u201d<\/p>\n<p>The ACLU also complained about the fact that \u201cthe entire Senate bill was drafted in secret, with no hearing, and with committee votes behind closed doors.\u201d Frankly, that secrecy is among the reasons I err on the side of the ACLU.<!--more--><\/p>\n<h3>The arguments<\/h3>\n<p>Before I came to side with the ACLU, however, I asked Pearce\u2019s spokeswoman to explain his stance. She pointed to these provisions in the bill:<\/p>\n<blockquote><p>\u201cNothing in this section (1021) shall be\u00a0construed to affect existing law or authorities relating to\u00a0the detention of United States citizens, lawful resident\u00a0aliens of the United States, or any other persons who are\u00a0captured or arrested in the United States.<\/p>\n<p>\u201c\u2026The requirement to detain a person in military custody under this section (1022) does not extend to citizens of the United States.\u201d<\/p><\/blockquote>\n<p>Simple, right? Not really, according to Andrew Stoddard, a spokesman for U.S. Rep. <a href=\"http:\/\/lujan.house.gov\/\" target=\"_blank\">Ben Ray Luj\u00e1n<\/a>, D-N.M., who voted against the bill. Here\u2019s what Stoddard told me:<\/p>\n<blockquote><p>\u201cIn Section 1021, U.S. citizens are not exempted as they are with Section 1022.\u00a0Section 1022 does have a constitutional limitation built in for persons picked up in the United States.\u00a0Section 1021 does not have any such limitation.\u00a0Section 1022 is limited to persons picked up in the course of hostilities but there is no such limitation in 1021. <strong>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).<\/strong><\/p>\n<p>\u201cThe language that Rep. Pearce\u2019s office cited in section 1021 was an amendment that purportedly limited the section\u2019s authority to what is available under \u2018existing law,\u2019 although it is not clear that existing law protects United States citizens or exempts the United States from the detention authority.\u00a0The Supreme Court has already held in <a href=\"http:\/\/en.wikipedia.org\/wiki\/Hamdi_v._Rumsfeld\" target=\"_blank\">the\u00a0Hamdi\u00a0case<\/a> that a United States citizen may be held if picked up on the battlefield.\u00a0Federal circuit courts have upheld the authority of the military to hold individuals picked up in the United States.\u00a0This leaves it up to the courts rather than adopting explicit protections against the arbitrary use of military authority.\u201d<\/p><\/blockquote>\n<p>You can read the full text of the bill <a href=\"http:\/\/www.gpo.gov\/fdsys\/pkg\/BILLS-112hr1540pp\/pdf\/BILLS-112hr1540pp.pdf\" target=\"_blank\">here<\/a>.<\/p>\n<h3>NM\u2019s senators concerned about detainment provisions<\/h3>\n<p>Both of New Mexico\u2019s 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\u2019t apply to U.S. citizens.<\/p>\n<p>U.S. Sen. <a href=\"http:\/\/bingaman.senate.gov\/\" target=\"_blank\">Jeff Bingaman<\/a>, D-N.M., said in <a href=\"http:\/\/bingaman.senate.gov\/news\/20111215-03.cfm\" target=\"_blank\">a news release<\/a> that he voted for the bill because of the importance of its funding provisions to New Mexico and to America\u2019s troops, but he \u201ccontinues to have serious concerns\u201d about the detainment provisions, in part because the bill \u201cdoes not make clear that Congress intends to exclude American citizens.\u201d<\/p>\n<p>A spokeswoman told me U.S. Sen. <a href=\"http:\/\/tomudall.senate.gov\/\" target=\"_blank\">Tom Udall<\/a>, 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, \u201cit is better to unambiguously write them into law.\u201d<\/p>\n<p>During Senate debate on the bill, Udall voted for four amendments \u201cto 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,\u201d Marissa Padilla said.<\/p>\n<p>Last week, Udall and a group of Democrats and Republicans in the Senate <a href=\"http:\/\/www.govtrack.us\/congress\/bill.xpd?bill=s112-2003\" target=\"_blank\">introduced legislation<\/a> that would, according to its title, \u201cclarify 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.\u201d<\/p>\n<p>Bingaman said he \u201cwill continue to support efforts to revise these provisions as Congress discusses detainee matters in the future.\u201d<\/p>\n<h3>Voting against defense spending isn\u2019t easy to do<\/h3>\n<p>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\u2019t easy to do, especially for lawmakers like Heinrich and Luj\u00e1n, 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\u2019t benefit him politically.<\/p>\n<p>Republicans including Sen. <a href=\"http:\/\/paul.senate.gov\/\" target=\"_blank\">Rand Paul<\/a>, R-Ky., joined those Democrats in their opposition.<\/p>\n<p>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\u2019s ability to detain indefinitely without clarifying that it doesn\u2019t apply to Americans.<\/p>\n<p>The Obama administration and others, meanwhile, argue that federal law already allows the indefinite detention of U.S. citizens.<\/p>\n<p>In my mind, if there\u2019s 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\u2019s a good chance we\u2019ll eventually have a president who will do just that.<\/p>\n<p>Based on the position of the Obama administration, it appears we already do. That\u2019s not surprising, given that Obama already <a href=\"http:\/\/www.nytimes.com\/2011\/10\/12\/opinion\/justifying-the-killing-of-an-american.html?ref=anwaralawlaki\" target=\"_blank\">ordered the assassination of an American citizen<\/a>. I didn\u2019t think our laws could be interpreted to justify that, either.<\/p>\n<h3>\u2018A dangerous game\u2019<\/h3>\n<p>We should be concerned any time there\u2019s a grab for greater power by or for law enforcement or the military. The government\u2019s assassination of an American should concern us. <a href=\"http:\/\/www.abqjournal.com\/main\/2011\/12\/11\/news\/the-roots-of-apds-crisis.html\" target=\"_blank\">20 police shootings in 20 months<\/a> in Albuquerque should concern us. The <a href=\"http:\/\/www.nmpolitics.net\/index\/2010\/04\/report-into-officer-involved-shooting-should-be-released\/\" target=\"_blank\">refusal of officials in Las Cruces to release a report<\/a> they say backs up a cop\u2019s decision to shoot and kill a civilian should concern us. The <a href=\"http:\/\/storify.com\/adbusters\/police-brutality\" target=\"_blank\">pepper-spraying of college students<\/a> at UC-Davis who were sitting peacefully with their arms linked should concern us.<\/p>\n<p>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.<\/p>\n<p>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\u2019s precedent, we\u2019re on a slippery slope. We\u2019re apparently headed down the same slippery slope with the indefinite detention of Americans deemed terror suspects.<\/p>\n<p>Paul <a href=\"http:\/\/www.nationalreview.com\/articles\/284937\/indefinite-detention-and-american-citizens-sen-rand-paul\" target=\"_blank\">summed up the concern<\/a> nicely:<\/p>\n<blockquote><p>\u201cIf 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.<\/p>\n<p>\u201cThe FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of \u2018Meals Ready to Eat,\u2019 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.\u201d<\/p><\/blockquote>\n<p>America has indefinitely detained foreigners who were labeled terror suspects but weren\u2019t actual terrorists. It\u2019s reasonable to assume that, given the FBI\u2019s 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?<\/p>\n<h3>\u2018Shut up. You don\u2019t get a lawyer\u2019<\/h3>\n<p>The concerns about the indefinite detainment of Americans are justified by the words of Sen. <a href=\"http:\/\/lgraham.senate.gov\/public\/\" target=\"_blank\">Lindsey Graham<\/a>, R-S.C., who supports the provisions and says the bill puts into law for the first time \u201cthat the homeland is part of the battlefield.\u201d<\/p>\n<p>\u201cIt 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,\u201d Graham was quoted by the Christian Science Monitor <a href=\"http:\/\/www.csmonitor.com\/USA\/Justice\/2011\/1203\/Guantanamo-for-US-citizens-Senate-bill-raises-questions\" target=\"_blank\">as saying<\/a>. \u201cAnd when they say, \u2018I want my lawyer,\u2019 you tell them, \u2018Shut up. You don\u2019t get a lawyer.\u2019\u201d<\/p>\n<p>Since when does our government get to decide which of us have due process rights and which don\u2019t? That\u2019s not the intent of the U.S. Constitution.<\/p>\n<p>Sadly, the last statement me from the Obama administration on this issue said the president won\u2019t veto the defense bill. The president\u2019s 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\u2019t appear to be question in his mind about whether he has the authority to detain Americans indefinitely.<\/p>\n<p>That\u2019s just one more reason to be concerned.<\/p>\n<p>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.<\/p>\n<p><a href=\"http:\/\/nmpolitics.net\/haussamen\" target=\"_blank\">Haussamen bio<\/a>\u00a0\u2502\u00a0<a href=\"http:\/\/www.nmpolitics.net\/index\/heath-haussamen\" target=\"_blank\">Commentary page<\/a>\u00a0\u2502\u00a0<a href=\"http:\/\/www.nmpolitics.net\/index\/category\/haussamen-columns\/feed\" target=\"_blank\">Feed<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>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.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1192,10],"tags":[242,171,111,116],"class_list":["post-34606","post","type-post","status-publish","format-standard","hentry","category-commentary","category-haussamen-columns","tag-civil-liberties","tag-military","tag-open-government","tag-washington"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/34606","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=34606"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/34606\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=34606"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=34606"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=34606"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}