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View Diary: The Rest of What Levin Said on NDAA Provisions (71 comments)

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  •  Misleading diary (0+ / 0-)

    For reasons stated in my comment above, I continue to think that this is a misleading diary. It just isn't true, as the diary states, that pre-existing legal provisions already exclude US citizens from indefinite detention.  Therefore, it just isn't true, as the diary argues, that section 1031 also excludes US citizens from indefinite detention. The diary puts forward its misleading argument by taking a comment Senator Levin said about section 1032 and incorrectly applying it to section 1031.

    I am seriously worried about this.  I am worried that readers of this diary will falsely conclude that the current version of the NDAA protects US citizens from indefinite detention.  If so, they will relax or drop their opposition to NDAA.  But, to repeat, the existing version of the NDAA does not protect US citizens from indefinite detention.  In important ways, it increases their vulnerability to indefinite detention.

    Cedwyn, will you consider correcting the argument made in this diary?  I think you should do so.

    •  i think you should prove your contention (0+ / 0-)

      that "It just isn't true, as the diary states, that pre-existing legal provisions already exclude US citizens from indefinite detention.  Therefore, it just isn't true, as the diary argues, that section 1031 also excludes US citizens from indefinite detention."

      show me where/how i got it wrong.  don't just tell me i'm wrong.

      My goal is to make the world safe for anarchy. - 4Freedom

      by Cedwyn on Tue Dec 13, 2011 at 08:48:46 AM PST

      [ Parent ]

      •  You're right to request more back-up for my claims (0+ / 0-)

        It's misleading to say that pre-existing legal provisions exclude US citizens from indefinite detention, because that question is hotly disputed by many people, including the primary drafters of the legislation.  See this revealing passage from Senator Feinstein explaining the background to her amendment:

        The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until “the end of the hostilities” which, in my view, is indefinitely.  Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically....  So our purpose in the second amendment ... is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.

        The other thing I said in my comments is that you quoted Senator Levin out of context, taking a comment about section 1032 and applying it to section 1031, to imply that section 1031 clearly excludes US citizens.  Section 1032 excludes US citizens, but section 1031 does not, in the view of its original sponsors.

        •  i did not misquote levin (0+ / 0-)

          and you're still simply claiming i did without breaking anything down or proving anything you're saying.

          anyhoo...difi's amendment modified 1031, which requires adherence to AUMF. 1032 is subordinate to 1031, i.e. nothing in 1032 can violate existing aumf authorities clarified in 1031.  i.e., aumf, which is addressed in 1031, protects u.s. citizens according to difi.  hence her amendment preserving current law.

          you can say that that's wrong, but all there is supporting that claim is that "some people say."  have you ever read the Non-Detention Act of 1971 which difi cited?  it says this:

          § 4001. LIMITATION ON DETENTION; CONTROL OF PRISONS

          (a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

          so the question becomes do these provisions trump that act?  not with difi's amendment passing, it doesn't.  so we're right back to u.s. citizens are already protected, with which levin agreed.

          by the by, i never said levin was specifically referring to 1031 with those words.  here is what i did say:

          So, according to DiFi, U.S. citizens and legal residents are already exempted from the provisions of section 1031 of the bill.  Levin, from that floor session November 17th, about three hours before the "proof" snippet (1:30:00 or so), agrees with her:

          then i quoted levin thusly:

          Administration officials reviewed the draft language for this provision and recommended additional changes. We were able to accommodate those recommendations, except for the Administration request that the provision apply only to detainees captured overseas and there's a good reason for that. Even here, the difference is modest, because the provision already excludes all U.S. citizens. It also excludes lawful residents of U.S., except to extent permitted by the constitution.

          i.e., my only point was that he agreed with difi on u.s. citizens already being exempt.  and it doesn't matter which provision he might have been specifically referencing when he, or i, made that point.

          but you still haven't even established that he was specifically referencing 1032 and not 1031 there.  simply saying it doesn't make it so.  PROVE IT.  quotes and timestamps and all that good stuff.

          My goal is to make the world safe for anarchy. - 4Freedom

          by Cedwyn on Wed Dec 14, 2011 at 08:52:10 AM PST

          [ Parent ]

          •  Please see my comment below. You're wrong. (1+ / 0-)
            Recommended by:
            eglantine

            With quotes and links and everything.  

            From the Congressional Record.  

            Hope that sufficies.  

            Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

            by Into The Woods on Wed Dec 14, 2011 at 07:24:18 PM PST

            [ Parent ]

            •  quotes and links do not a proof make (0+ / 0-)

              connect your dots, man.  

              and don't tell me i'm wrong; you don't "know" any more about this than the rest of us.

              My goal is to make the world safe for anarchy. - 4Freedom

              by Cedwyn on Thu Dec 15, 2011 at 06:25:08 AM PST

              [ Parent ]

              •  and anyone relying on Hamdi (0+ / 0-)

                to decide the government can do this willy nilly to americans anywhere didn't read the whole thing.

                hamdi was caught in an active combat zone with an AK 47 in hand.  from one of your links:

                Relying on Ex parte Quirin, 317 U. S. 1 (1942), the court emphasized that "one who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." 316 F.3d, at 475. "The privilege of citizenship," the court held, "entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches.

                even the hamdi decision, which proponents of the NDAA provisions before changes cling to in support of their position, allows rights for review of detainee status.

                it all comes down to classifying detainees.  per the new bill, that falls on the C-i-C, not the military.  those decisions are delineated by aumf and its subordinating legislation.  1031 and 1032 are both subordinate to aumf and other standing law, especially in light of difi's amendment.

                My goal is to make the world safe for anarchy. - 4Freedom

                by Cedwyn on Thu Dec 15, 2011 at 06:34:37 AM PST

                [ Parent ]

                •  Which was exactly my difficulty when you quoted (0+ / 0-)

                  Levin as saying the Supreme Court had already ruled that what they were proposing was legal.

                  And you're absolutely correct, it all comes down to what you call "classifying detainees".

                  If you as a US Citizen are classified by this President, the next, or the next, as a "covered person" you can be detained indefinitely without trial.  

                  All because you "supported" an organization somehow "associated" with al Qeda and that organization engaged in some act of hostilities anytime after Sept 11, 2001 against the US or any of the "coalition partners".

                  Sponsors of the bill interpret that as nothing more than existing law.

                  Do you?

                  Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

                  by Into The Woods on Thu Dec 15, 2011 at 02:41:24 PM PST

                  [ Parent ]

              •  You're wrong. (0+ / 0-)

                Your analysis shows you know less about this.  

                Your reliance on some sort of magic "subordination" is baseless.

                Your reliance on Sen Feinstein's amendment as some sort of trump card shows you are ignoring the plain statements of the sponsors of the Senate bill that they believe current law authorizes detention without trial for US Citizens detained while in the United States for acts that do not even come  close to being "caught in an active combat zone with an AK 47 in hand" or even any direct connection to al Queda, the Taliban or 9-11.

                So you're wrong.  

                If you give them an inch, they try to take a mile.

                History since 9-11 has shown that clearly.

                It will do so again if this passes and no claim of "subordination" will protect you.

                Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

                by Into The Woods on Thu Dec 15, 2011 at 02:35:45 PM PST

                [ Parent ]

          •  Here's the proof that Levin (0+ / 0-)

            was discussing section 1032.

            We were unable to agree to the administration’s proposal to strike section 1032, the provision that requires military detention of certain al-Qaida terrorists subject to a national security waiver. We did, however, adopt a number of changes to the provision. In particular, we modified the provision so that it clarifies that the President gets to decide who makes the determinations in coverage, how they are made and when they are made, ensuring that executive branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

               Second, we clarify that there is no interruption of ongoing surveillance and intelligence-gathering activities or of ongoing law enforcement interrogation sessions. There have been misstatements, misimpressions, and misinterpretations of the provisions of our bill relative to those issues. We clarify them to make sure it is clearly understood by this body and the American people that–repeating, it is the executive branch, it is determined by the President, the people he appoints who will make determinations of coverage, how they are made, when they are made, so that it ensures the flexibility that the executive branch wants to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time.

               It has been suggested that ongoing surveillance and intelligence-gathering activities by law enforcement people would be interrupted, or that their interrogation might be interrupted. It is very explicitly clear in this bill that there is no such interruption, there is no such interrogation session interruption or surveillance interruption or intelligence-gathering activities interruption. The process to make sure that doesn’t happen is in the President’s hands.

               The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other short-term basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here.

            The second bolded passage is the one you used to claim that, in Levin's' view, section 1031 excludes all US citizens.  That's wrong, because he was talking about section 1032.

            I don't understand your point that section 1032 is subordinate to section 1031.  In any event, you can't use Levin's claim that section 1032 excludes U.S. citizens (which it obviously does) to infer a belief on his part that section 1031 excludes U.S. citizens.

          •  Moreover, Levin's language, (0+ / 0-)
            It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution.

            is obviously a reference to section 1032, which is being directly quoted.

      •  See also this excellent and informative diary (0+ / 0-)
        •  Excerpts and further analysis below. (0+ / 0-)

          I posted below in response as well, excerpting from that resource diary.  

          In addition to that 'somewhat' lenthy work, I've also  taken a fine tooth comb to the new language and found that it expands existing authority by its own terms, something that any supposedly limiting  'intent' statement would not overcome.  

          This is exactly why I put that monster together.

          I thought it might come in handy.

          Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

          by Into The Woods on Wed Dec 14, 2011 at 07:29:52 PM PST

          [ Parent ]

          •  it's a monster all right (0+ / 0-)

            with lots of statements from you and links and stuff, but nowhere did you lay out exactly how your links support your contentions.

            in what specific ways is existing authority expanded?

            because levin seems to think the opposite.  detainees now are guaranteed a habeas hearing.  with a lawyer.  detainees can be removed from military detention at any time for civilian trial or custody.  those detained are now entitled to an annual review of that decision and their status.  (c-span video, 1:35 ish)

            My goal is to make the world safe for anarchy. - 4Freedom

            by Cedwyn on Thu Dec 15, 2011 at 06:20:19 AM PST

            [ Parent ]

            •  It's still indefinite detention (1+ / 0-)
              Recommended by:
              Into The Woods

              Those of us opposed to the legislation are not satisfied with these assurances (habeas corpus, legal representation, annual reviews).  These procedures still allow people to be indefinitely detained without charge or trial, potentially for life.

              That's what's happening at Guantanamo Bay. And the DC Circuit Court of Appeals is increasingly turning the habeas corpus right into a dead letter.

              We're opposed to indefinite detention without charge or trial for people merely believed to be terrorists or supporters of terrorism.  If they're accused of terrorism, they should receive a trial, as outlined in the 4th, 5th, and 6th amendments to the Constitution.

            •  It expands "who" can be a "covered person" (0+ / 0-)

              And if you had read the comments below, you'd know that.  

              The original resource diary did not include that additional analysis.  

              Someone in a very expensive suit is at the front door and says he wants to foreclose on our democracy. Where should I tell him he can put his robosigning pen?

              by Into The Woods on Thu Dec 15, 2011 at 02:29:18 PM PST

              [ Parent ]

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