Bipartisan BFFs in enabling indefinite detention: Sens. John McCain and Carl Levin.
(Office of Senator Patrick Leahy/
Wikicommons)
There has certainly been a lot of sturm und drang surrounding the indefinite detention provisions codified into law in the most recent National Defense Authorization act.
There are clearly strong opinions on the role President Obama played in this becoming law and what measures he might have taken to prevent it.
Such arguments can continue to infinity, or—if you prefer—indefinitely. And they almost certainly will now. His signature will be a part of his legacy as President Clinton's signing the repeal of Glass-Steagall remains a part of his.
This diary is not intended to invite discussion on Obama's role in all this.
It is important to hold the president accountable to his own campaign rhetoric of 2007 when he criticized President Bush's abuse of executive authority, particularly on the very topic of the Bush administration's detention policy.
But focusing too much on the president serves to suck all the oxygen out of the debate on important questions which remain unanswered. This diary is intended to invite people to take President Obama out of the equation just for the moment and focus instead on the forces and motivation that brought the bill to his desk.
Like, how exactly did this bill come to happen? And why?
One of the few in DC to sound the alarm was Sen. Mark Udall (D-CO). He eventually offered amendments to improve the bill that failed. Before that he said on Nov. 15:
"I continue to have grave concerns about the detainee provisions in the Senate's version of the 2012 Defense Authorization Act, not the least of which is that questions remain about the impact on American citizens and counterterrorism operations. I do not believe that the consequences of the provisions have been adequately considered."
When did we, as a nation, as a democracy, get the opportunity to weigh in on this bill? When did we, as citizens get to voice our own concerns about the consequences? Where was the public debate period on this particular bill? Did I blink and miss it?
This bill seemed to just sneak up on us. We can now endlessly debate whether this provision may or may not have codified the end of a right to habeas corpus in the American legal system, for citizens. And it definitely seeks to strip non-citizens of habeas corpus, never-mind what the Supreme Court said in Boumediene v. Bush.
The point being, shouldn't we have settled that debate before this half-baked anti-terrorism tool was signed into law? Is democracy truly a participatory activity? Or are we without votes in the Congress really just watching on things that really matter?
Near as I can tell, the earliest public reporting of this bill broke from the AP on Nov. 15. The impetus for reporting it at the time was the amendment passed a Senate Armed Services committee vote, essentially making the measure impossible to obfuscate or hide from the public. The committee vote was conveniently timed just a week before Americans' attention was consumed by Thanksgiving Day plans and preparations.
Perhaps it's my perspective as an LGBT activist that colors my perception of this story. LGBT people tend to think of legislative bills as herculean efforts that require years and years of lobbying and pushing and begging and pleading and coercion and threats and primary challenges and nail-biting and lord knows what else.
Marriage equality seriously thrust itself into the public debate in New York with a civilly disobedience mayor in New Paltz issuing same-sex marriage licenses in 2004. Still, there was waiting, and the filing of lawsuits and public debate for seven more years on what the very dire consequences might be of allowing gay people to wed each other? Likewise, the idea of LGBT employment discrimination was first introduced into the Federal congress in 1974. Dozens of states and jurisdictions have moved forward, with no discernible problems. Yet, at the Federal level we wait, and debate endlessly about the wisdom of forbidding employers to fire people because the are gay, lesbian, bisexual or gender variant.
And, of course, it isn't only LGBT bills that languish forever. It took 10 years to bring the 9/11 First Responders Bill to fruition. Ten years to motivate DC to tell the heroes that carried our wounded and dead from the rubble of the World Trade Center, "Thanks for that, we've got your back."
It's shocking and infuriating how slow the legislative process moves at times.
And, equally shocking and infuriating how very fast it can move at times.
The ACLU alleges the legislation was drafted in secret:
The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday. The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing.
The "drafted in secret" allegation links to a
Washington Post article that is no longer available on their website. It appears to be
WaPo's version of the AP report.
Was 47 days from its public revelation into signing it into law really enough time to adequately vet this piece of legislation? Is vetting of legislation by those outside the smoke-filled rooms not an essential component of a functioning, transparent democracy?
So, who wanted this?
The obvious answer is Sens. Carl Levin and John McCain wanted it.
But that's too simple. The senators were not acting as rogues. It's hard to imagine this moved forward without the consent and approval of Majority Leader Harry Reid and the endorsement of the leadership of the Democratic party, in general. Someone leaned on Levin and McCain to draft this amendment and offer it up in committee. Someone asked them to do this, and surely someone's fingerprints were left behind on the bill's path to the committee vote.
Certainly there are lobbyists who played a hand and someone paid the lobbyists. Visitors' logs, phone and check trails must have been left in the wake of this bill.
Ferreting out the answers to this puzzle is a nearly impossibly tall order for any citizen journalist (such as myself, and most of the people on this site). Few citizen journalists have sufficient contacts among the people in the know affiliated with the relevant organizations: the Senate; Department of Homeland Security; the intelligence community; the Department of Defense; the Pentagon; the White House; military contractors; the lobbyists.
Such an ambitious endeavor as a thorough investigative post-mortem is most likely to be accomplished by a seasoned professional journalist with a long list of contacts and a salary that allows them the luxury of the time to really pound the pavement and burn up the phone lines. There may be such people on the task, will they be listened to and believed if they bring us the answers? What if we don't like what they find?
Why did they want this?
And most glaringly, why now? By all reports the "war on terror" is proceeding just swimmingly! There has not been another serious incident on American soil since 9/11. We have been reassured
Al-Qaeda has been decimated. After the top prize of Osama Bin Laden was brought home, ABC's News Jake Tapper declared
"The list of senior terrorists killed during the Obama presidency is fairly extensive," and listed over 20 high-level accused terrorists the administration as taken out. Progressives, wary of the "Democrats are soft on terror" allegation have reposted versions of this list over and over. Tapper himself concludes:
Remember when Rudy Giuliani warned that electing Barack Obama would mean that the U.S. played defense, not offense, against the terrorists?
If this is defense, what does offense look like?
This administration, like the previous one, has been nothing if not aggressive, and effectively collected many trophies in the war on terror. Likewise, the news keeps us
regularly updated on all the terrorist plots our intelligence community has managed to foil.
And they have effectively done all this with just the tools already at their disposal. Why do they need more expansive ones now?
That we are, in 2011, "winning" seems self-evident. What justification is there, now in 2011, to further erode basic garantees of civil liberties in the pursuit of "security?"
What do they intend to do with it?
This is the dangerous question. Obviously, it calls for speculation about future hypothetical events. President Obama's signing statement assured the country nothing, really. He is unable to assure us this will alway be the case with future administrations.
But a change has occurred, and David Cole writing in The Nation puts his finger on what is now very wrong about the new normal:
But we can no longer point the finger only at Bush. He’s been out of office for three years, and Guantánamo is still very much with us. Congress, with the support of many Democrats, has adopted a shortsighted “not in my backyard” attitude, making it impossible for President Obama to deliver on his promise to close Guantánamo. In provisions recently renewed in the NDAA, Congress has barred any transfer of Guantánamo detainees to a US prison, even for criminal trial, and radically restricted the president’s authority to transfer detainees to foreign countries, essentially requiring impossible guarantees that they won’t ever pose a threat to the United States. As a result, even though more than half of the remaining detainees—eighty-nine of 171—have been fully cleared for release by a joint review conducted by the military, CIA, FBI and the Department of Homeland Security, they remain stuck there. Locking up people we concede need not be held is the very definition of arbitrary detention, but that has become the norm at Guantánamo.
Full disclosure that I hold a radical view that the concerns should not only be limited to the danger to US citizens but at the general concept of denying habeas corpus to prisoners, in general. When US citizens are detained, it creates an international incident and
our former heads of state are promptly sent to retrieve them. When we respect other states citizens' as deserving of due process of law as our own, we model the very behavior we extol as the basis of our own virtuous democratic foundation. The agreement that no proud nation imprisons people without a transparent process that affords the accused some fair opportunity for redress was the principle that drove this inclusion in the Geneva Convention in the first place. The right to some sort of evidence-based trial and conviction before incarceration or execution transcends the Geneva Convention and the US Constitution to a basic human right.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. He posted on this topic Saturday, the headline serves as a conclusion for the why of all this:"A Tired Obsession with Military Detention Plagues American Politics." He observes:
Before the terrorist attacks on September 11, 2001, there were only two ways of holding prisoners — either they were prisoners of war, protected by the Geneva Conventions, or they were criminal suspects, to be charged and subjected to federal court trials.
That all changed when the Bush administration threw out the Geneva Conventions, equated the Taliban with al-Qaeda, and decided to hold both soldiers and terror suspects as “illegal enemy combatants,” who could be imprisoned indefinitely without charge or trial, and with no rights whatsoever.
Worthington meticulously traces the history of military detention. He summarizes the various Supreme Court cases and how when the Supreme Court did not return the verdicts they'd hoped for, Congressional override strategies were adopted. This include the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 and others.
Viewed from this prism, this legislative effort isn't really so new, it's just the latest in America's many efforts to relieve ourselves of our obligations to the "quaint" Geneva Convention. With these detention provisions in the NDAA it's apparent no winds of change have swept this sector and civil libertarians find themselves still fighting the last war.