The U.S. Senate voted Tuesday to maintain provisions in a bill that would allow the military to apprehend U.S. citizens, including those on U.S. soil, without charge, and hold them indefinitely if they are labeled as terrorists. President Obama has threatened a veto.
The vote comes after attempts by the American Civil Liberties Union and others to strip the massive National Defense Authorization Act (NDAA) of these components. An amendment by Senator Mark Udall of Colorado failed by a 61-37 vote.
Udall warned “these proposed changes would require the military to take on a new responsibility as police, jailors and judges — jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”
Why is this so dangerous? As Shahid Buttar of the Bill of Rights Defense Committee said pointedly:
“We have courts in America to check executive power. Impartial judges limit over whom the state may exercise its coercive power to deny freedom. We don’t trust prosecutors to make those decisions, because we presume innocence. Being considered ‘innocent until proven guilty’ is a bedrock constitutional norm, a cornerstone in the edifice our Founders constructed to defend freedom from the potential tyranny that Levin & McCain casually invite.”
Supporters of the provisions, including Senators Carl Levin (D-Mich.) and John McCain (R-Ariz), say the bill only targets al-Qaeda (the unspoken rationale, of course, is that we are to believe that anyone accused of being associated with Al-Qaeda is not entitled to a fair trial). Yet they go on to note “the administration has broad authority to decide who is covered by this provision and how and when such a decision is made.”
As Sen. Lindsey Graham (R-S.C.) said: “The enemy is all over the world. Here at home… They should not be read their Miranda Rights. They should not be given a lawyer…”
There are plenty of excellent blog posts out there right now dissecting the minutiae of the bill (a great starting point is my former colleague Chris Anders’ analysis for the ACLU).
The point that I think needs to be emphasized, though, is how this fits into the bigger political picture. This bill is a concrete manifestation of what is often a quite nebulous topic — the erosion of our fundamental rights and liberties. In that context, there are two concepts that cannot be emphasized enough:
1) This bill is a reflection of a parallel legal system that has been created for those deemed “terrorists.” It is about “apprehension” rather than “arrest.” It is “indefinite detention” rather than “fair trial.” Those who are labeled as terrorists are stripped of their basic rights and ushered through a separate legal system, where they have no power to challenge their designation, all in the name of national security. This parallel legal system may share similar features, but it is not about fairness — it is a spectacle of democracy. This parallel system is not new. It exists in Communications Management Units, Guantanamo Bay, designer terrorism laws like the Animal Enterprise Terrorism Act, grand jury witch hunts, and more. This is, however, a radical expansion of that trend.
2) That parallel system, by definition, lacks checks and balances on government power. We are told that this is why a separate set of laws is needed for terrorists: the existing checks and balances are too burdensome. Yet, no agent of the state could ever openly say “give us more power Power POWER without accountability!” We have to be reminded that, as Levin and McCain have feebly retorted, this is “only” about Al-Qaeda.
As a result, we have two competing messages. Politicians say out of one side of their mouth: “Trust us, this is just about those evil, evil, terrorists of Al-Qaeda. No one else has anything to worry about.”
Out of the other side of their mouth, they say: “Well, the threat of terrorism is fluid, and we need the broad authority to expand the scope at any time.”
Which one do you believe?