Update below 12/3
In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”
Senate bill s1867 (National Defense Authorization Act of 2012) has been cleared for vote as is any day now. This bill includes section 1031 (Sen. Levin, sponsor) which unequivocally formalizes the military’s power to detain anyone on planet Earth indefinitely. While such legislation deserves every adjective synonymous with ‘outrageous’ and ‘despicable’, its radical challenge to the rule of law is not groundbreaking. It is simply a proposed codification of practices and executive privileges already in use.
First, some historical context:
Article 3 Section 3 US Constitution – Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Posse Comitatus Act of 1878 – From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress;
September 25, 2001 secret John Yoo — Justice Dept. lawyer — memo – In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
s1867 sec. 1031 – (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.
While we have already seen the effective deletion of Article 3 Section 3 from the Constitution with the Jose Padilla case — citizen held by military for over 3 years without trial — bill s1867 would officially null and void the Posse Comitatus Act of 1878. This is where our guarantee against military actions and arrests on American soil comes from. In other words, there is nothing explicitly unconstitutional about this legislation, other than a potential violation of Article 3 Section 3 in practice that the Supreme Court has dodged responsibility for in the Padilla case.
The larger point is that under the doctrine of Executive Privilege vis-a-vis an indefinite and undefinable ‘War on Terror’ that Bush and now Obama operated under, the planet was already a battlefield and US citizens were already not allowed a trial. This was clear in the Padilla case, but is also clear with the assassination of US citizens –Anwar al-Awlaki and his 16 year old son — by Obama with no transparency, much less a trial.
So what exactly is the significance of this legislation? It is the formal codification and legal cover for radical executive powers which ignore checks and balances. It is bipartisan congressional support for endless war powers at home and abroad. It is a sign of just how inured we are as a nation to radically opaque executive power that legislators can sneak this into a budget bill.
Side note: A lot of media are claiming Obama is threatening to veto the bill out of concern for the rule of law. This is misleading because he is not really seriously threatening to veto anything here, and more importantly:
But by and large the White House’s objections are not to these powers but — explicitly — to the idea that Congress rather than the President can dictate how they are exercised. The White House isn’t defending due process or limited war; it’s defending broad Executive prerogatives to prosecute the war without Congressional interference.
In other words, even legislation affirming assumed and undefined war time executive powers are viewed as imposing on inherent executive power.
Ultimately, this legislation is not a change in the status quo and will likely not precipitate Army Rangers driving into your home in a Humvee and dragging you to Guantanamo for the rest of your life — even though Congress is about to say they could if they wanted. This is, instead, another sign that accountability and the rule of law have no place during endless war against undefinable enemies.
Update: This has officially passed the Senate 93-7. Senators Coburn, Harkin, Lee, Merkley, Paul, Sanders, and Wyden being the only no votes to the bill as a whole. Next steps are passing the House and Obama signing it into law.
To be clear, the Obama administration has only hinted that top advisers MAY recommend a veto of the bill because of section 1031. This sounds great to liberals, except that his officials and lawyers have consistently argued the neo-con position that only the President can be judge, jury and executioner for accused terrorists, and the President can unilaterally accuse anyone a terrorist, even without telling anyone.
The government lawyers, CIA counsel Stephen Preston and Pentagon counsel Jeh Johnson, did not directly address the al-Awlaki case. But they said U.S. citizens do not have immunity when they are at war with the United States.