Pedro's Thoughts on s. 1867

We guys, I know I said I'd post a VLOG about this, but frankly it's been a busy an hectic break for me so I haven't been able to get around to it. So here's the unedited version of what I was going to read. Hopefully there aren't any glaring grammatical deficiencies but it will surely provide you with a much more detailed analysis of S. 1867 and the issues surrounding it.

For those wary of downloading strange attachments...

S. 1867 has been presupposed by liberal leaning groups to serve as an affront to individual liberties. The fact of the matter is such assumptions, while not entirely baseless, are rather easily disproven. The objectionable bit of the bill is Division A, Title X, Subtitle D: Detainee Matters. The ACLU and other liberal groups have taken to the internet and conventional media sources arguing that the Subtitles ambiguous language would enable the military to indefinitely apprehend persons under suspicion of terrorism. Part of this fear arose out of a response to the fears aroused by the early stages of the PATRIOT act, and the subsequent treatment and case law surrounding the treatment of detainees imprisoned in Guantanamo Bay. While the fears forged during the Bush administration are lingered, they are quite unfounded in this case.

Despite the fact that Senator Feinstein proposed an amendment “To limit the authority of the Armed Forces to detain citizens of the United States under section 1031,” such an amendment was unnecessary (S. Amdt. 1126). While such an amendment would have further clarified an already stated point, it failed by a 45 to 55 vote. The interesting anecdote about this bill it is exemplary of trends in American Security Politics. Studying the roll call vote (Vote Number 214) is a point blank explanation of how each Senator perceives detainee rights. Senators voting Nay are clearly expressing the sentiment that US citizens should be allowed to be detained indefinitely, as foreign nationals are. While this may seem as a scary sentiment, there are two major precedents which would seemingly negate this impulse.

The first precedent lies in the bill itself. If you were to read section 1031, you would uncover subsection e – Authorities. Subsection e, ambiguously claims that “Nothing in this section 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”. You could argue that the last clause would allow for US citizens and lawful aliens to be detained indefinitely under this section if they were apprehended outside of the United States – as many members of the media and academic community noted in the case of Abdulrahman Al-Awlaki. Al-Awlaki was a US national, living in Yemen, targeted (some would argue illegally) by a CIA drone strike in Yemen. However, such a critique would be predicated on another comma after either “Lawful resident aliens of the United States” or the subsequent “or any other persons”. Without this comma, the subsection seems to imply that US nationals are still exempt from indefinite detention regardless of where they were apprehended.

In addition to Section 1031, Section 1032 addresses more specifically the issue of the military’s ability to indefinitely detain US citizens. Subsection B Reads:

(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. (S. 1867, Division A, Title X, Subtitle D, Section 1032).

Here, rather unequivocally, the bill lays out policy towards both US nationals, and lawful resident aliens. Under S. 1867 the US cannot detain a US citizen in military custody. Alarmists can point to the “under this section” clause, however, this is the section that allows the military to indefinitely detain (with respect to existing Geneva Convention law) suspected terrorists until the cessation of hostilities. If the military cannot indefinitely detain American citizens under this new legislation, then the only avenue for them to indefinitely detain American citizens would be under prior legislation.

However, if you look past instances in which the US attempted to do this, you will see an adamant and resounding response by the courts. In 2001 the Afghani Northern Alliance apprehended a presumed Taliban fighter, Yaser Esam Hamdi. Hamdi was turned over to the US military, which initially held him at Guantanamo bay. The US discovered that Hamdi had US citizenship and moved him to a naval brig in Virginia. Hamdi remained in US custody without charge, trial, or access to a defense attorney until June 2002 when his father filled a writ of habeas corpus. The government defended their actions, based off of the post-September 11 Authorization of Use of Military force, and a small amount of evidence they were willing to publicize, known as the Mobbs Declaration. The Mobbs declaration, basically amounted the government saying “we say so”, as noted during the 4th circuit appeal.

The Supreme Court later found that in lieu of a suspension of habeas corpus, which has yet to happen during the war on terror, nor does this new legislation explicitly do, Hamdi was entitled to due process. While the details of the court’s decision are interesting, they are not as relevant here as their conclusion. The court asserts that “the threads to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator”. What this means is that unless Hamdi is overturned by another case in the near future, the government cannot hold an US citizen without granting him due process.
So both s. 1867, and recent case law deny the military the right to indefinitely detain US citizens, why is the media, and in particular the internet so worried?
The war on terror has produced some fairly horrifying abuses of civil rights by the government. The PATRIOT act, passed in October of 2011 with near unanimous consent (with many votes by politicians who now clamor for more restrictions on the government’s capabilities), offered an all too close look at what a modern state could do. In its initial form, the government was able to conduct warrantless wiretaps, search library records, and indefinitely detain any alien, legal or illegal. While there were more controversial provisions, these formed the basis for the media and public backlash that has since changed the bill, and forced the government to abandon some of the more provocative measures.

In addition to the PATRIOT act, the Bush administrations treatment of detainees at Guantanamo bay has been repeatedly called into question. Detainees were alleged to have been held indefinitely, without trial, and in oft inhumane conditions. Even Hamdi wasn’t argued until 2004, and Hamdi only really affects US citizens. It wasn’t until 2008 that non-US citizens held at Guantanamo were granted (limited) habeas corpus rights by Boumediene v Bush. The Bush administration can, among other things, be categorized by the strengthening of the executive, and his ability to obtain information and imprison suspected dissidents.

However, since the Obama administration took office, it has shown a markedly different posture towards the ‘poliecening’ of America. Despite failing to close Guantanamo bay, he had postured himself to do so, and although this is one of my biggest critiques of president Obama, recent Defense spending bills (produced in congress) have explicitly denied any funds be diverted to moving prisoners or making provisions to close Gitmo. While this doesn’t in my mind, completely admonish him from any blame in Gitmo’s continued existence, you can also study his record on Gitmo detainee to see where his intentions lie. Upon assuming office president Obama launched a study about the detainees and why they were being held. While this study took longer and produced some rather dubious results, it shows a commitment to finding out the truth, and to a certain extent the judicial process. We can’t condone the current administrations intentions, based off the actions of the previous administration.

The Obama administration shouldn’t be regarded in the same light as the Bush administration. It has launched no PATRIOT act-esque initiatives aimed at tightening its control on the population. The Obama administration has produced official policy letters stating that it would veto S. 1867 as long as the detainee provision remains. While a veto seems irrelevant given the amount of Senators who voted for the bill surpassed the number required to over-ride the veto, it still is telling. What it shows is that even if the bill passed, and even if my analysis has been incorrect, the administration shows no inclination to enforce the legislation. The executive is the branch responsible for carrying out and enforcing laws that congress makes, or rulings the court makes. Without the authority of the executive, the bill would become nothing more than a paper tiger. For those of you to say that wouldn’t it be the military who had the final say, I ask of you “who is the commander in chief of the United States Armed Forces”? Is it congress? Is it General Petreas? Or is it president Obama?

So what does this all mean? Should American’s be content, knowing that their fears are largely without warrant, and that even in a doomsday scenario nothing bad would really happen? I would say that no, there is still significant reason for concern, but not necessarily over this bill. There are two things that would need to happen for this bill to affect America in the way that the pundits would have you believe. Either one, the Supreme Court over rules Hamdi, suspending Habeas Corpus, or denying it outright, to American citizens. Or two, the bill passes, and Obama fails to win re-election. While Obama has shown no propensity to use this bill in a negative fashion, there wouldn’t be anything stopping a Mit Romney or Newt Gingrich from doing so. While either of these cases could occur, it isn’t the most troubling possibility to me.

What has me worried is the amount of Senators who believe the executive should have this power - all of those Senators who voted against Amendment 1126, including one who I voted for to be President. A significant number, a majority of US senators, at least for the time being, believe that the executive should be able to suspend the writ of habeas corpus and indefinitely detain US citizens on suspicion of terrorism. This is why I’ll be spending my holiday break writing legislators, and officials, urging them to reconsider their opinions and take action. Not because I believe the US to be in imminent danger of becoming a police state, but because of the pervasive attitudes of our elected officials towards some of the very fundamental rights this country was founded upon.