Congress endorsing military detention, a new AUMF

(updated below)

A bill co-sponsored by Democratic Sen. Carl Levin and GOP Sen. John McCain (S. 1867) - included in the pending defense authorization bill - is predictably on its way to passage. It is triggering substantial alarm in many circles, including from the ACLU - and rightly so. But there are also many misconceptions about it that have been circulating that should be clarified, including a possible White House veto. Here are the bill's three most important provisions:

(1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

(2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who "substantially supports" Al Qaeda, the Taliban or "associated forces" (Sec. 1031); and,

(3) imposes new restrictions on the U.S. Government's ability to transfer detainees out of Guantanamo (Secs. 1033-35).

There are several very revealing aspects to all of this. First, the 9/11 attack happened more than a decade ago; Osama bin Laden is dead; the U.S. Government claims it has killed virtually all of Al Qaeda's leadership and the group is "operationally ineffective" in the Afghan-Pakistan region; and many commentators insisted that these developments would mean that the War on Terror would finally begin to recede. And yet here we have the Congress, on a fully bipartisan basis, acting not only to re-affirm the war but to expand it even further: by formally declaring that the entire world (including the U.S.) is a battlefield and the war will essentially go on forever.

Indeed, it seems clear that they are doing this precisely out of fear that the justifications they have long given for the War no longer exist and there is therefore a risk Americans will clamor for its end. This is Congress declaring: the War is more vibrant than ever and must be expanded further. For our political class and the private-sector that owns it, the War on Terror - Endless War - is an addiction: it is not a means to an end but the end itself (indeed, 2/3 of these war addicts in the Senate just rejected Rand Paul's bill to repeal the 2003 Iraq AUMF even as they insist that the Iraq War has ended). This is the war-hungry U.S. Congress acting preemptively to ensure that there is no sense in the citizenry that the War on Terror - and especially all of the vast new powers it spawned - can start to wind down, let alone be reversed.

Second, consider how typically bipartisan this all is. The Senate just voted 37-61 against an amendment, sponsored by Democratic Sen. Mark Udall, that would have stripped the Levin/McCain section from the bill: in other words, Levin/McCain garnered one more vote than the 60 needed to stave off a filibuster. Every GOP Senator (except Rand Paul and Mark Kirk) voted against the Udall amendment, while just enough Democrats - 16 in total - joined the GOP to ensure passage of Levin/McCain. That includes such progressive stalwarts as Debbie Stabenow, Sheldon Whitehouse, Jeanne Shaheen and its lead sponsor, Carl Levin.

I've described this little scam before as "Villain Rotation": "They always have a handful of Democratic Senators announce that they will be the ones to deviate this time from the ostensible party position and impede success, but the designated Villain constantly shifts, so the Party itself can claim it supports these measures while an always-changing handful of their members invariably prevent it." This has happened with countless votes that are supposed manifestations of right-wing radicalism but that pass because an always-changing roster of Democrats ensure they have the support needed. So here is the Democratic Party - led by its senior progressive National Security expert, Carl Levin, and joined by just enough of its members - joining the GOP to ensure that this bill passes, and that the U.S. Government remains vested with War on Terror powers and even expands that war in some critical respects.

Third, I haven't written about this bill until now for one reason: as odious and definitively radical as the powers are which this bill endorses, it doesn't actually change the status quo all that much. That's because the Bush and Obama administrations have already successfully claimed most of the powers in the bill, and courts have largely acquiesced. To be sure, there are dangers to having Congress formally codify these powers. But a powerful sign of how degraded our political culture has become is that this bill - which in any other time would be shockingly extremist - actually fits right in with who we are as a nation and what our political institutions are already doing. To be perfectly honest, I just couldn't get myself worked up over a bill that, with some exceptions, does little more than formally recognize and codify what our Government is already doing.

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To see why that's true, it is worth briefly examining each of the three provisions that are the most significant. These are complex issues that cannot be meaningfully analyzed in a 400-word post. But they are important enough to take the time to understand:

Military detention of accused Terrorists

The Levin/McCain bill would require that all accused Terrorists be held in military detention and not be charged in a civilian court - including those apprehended on U.S. soil - with two caveats: (1) it exempts U.S. citizens and legal residents from this mandate, for whom military detention would still be optional (i.e., in the discretion of the Executive Branch); and (2) it allows the Executive Branch to issue a waiver if it wants to charge an accused Terrorist in the civilian system.

One of the nation's most stalwart war cheerleaders and one of the bill's most vocal proponents, Sen. Lindsey Graham, made clear what the provision's intent is: "If you're an American citizen and you betray your country, you're not going to be given a lawyer . . . I believe our military should be deeply involved in fighting these guys at home or abroad." As Graham made chillingly clear, one key effect of the provision is that the U.S. military - rather than domestic law enforcement agencies - will be used to apprehend and imprison accused Terrorists on American soil, including U.S. citizens.

In doing so, Graham and the bill he supports - exactly like all those who supported Obama's due-process-free assassination of Anwar Awlaki - have apparently decided simply to dispense with Article 3, Section 3 of the Constitution, which provides that nobody can be punished for treason without heightened due process requirements being met. In that regard, compare (a) Graham's pronouncement (widely shared by those supporting Awlaki's assassination) that "if you're an American citizen and you betray your country, you're not going to be given a lawyer" to (b) the Constitutional requirement in Art. III, Sec. 3 that "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." To deny a citizen the right to a lawyer and go to court on the ground that they've "betrayed their country" and thus deserve to be imprisoned without a trial (or, worse, to be assassinated without one) is as violent a betrayal of the U.S. Constitution as one can imagine, literally.

But as daunting and radical as this all sounds - The New York Times described the bill this way: it declares that "the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial" and "contains no exception for American citizens" - this more or less describes the status quo. Military custody for accused Terrorists is already a staple of the Obama administration. Long before Congress ever acted to block the closing of Guantanamo (the excuse from Obama apologists we hear endlessly) - let me repeat that: long before, and totally independent of, any act of Congress - Obama did two things to entrench indefinite military detention: (1) he made clear that dozens of detainees would continue to be held indefinitely and without charges; and (2) he unveiled his plans not to close, but simply to re-locate to Illinois, the Guantanamo system of indefinite, military detention. The President already has the power to imprison accused Terrorists indefinitely and in military custody, and both the former and current Presidents have aggressively exercised that power.

Even with regard to using the military to imprison U.S. citizens arrested on U.S. soil, this has already been done: that's exactly what the Bush administration's lawless, due-process-free, 3 1/2 year imprisonment of Jose Padilla was. And the Fourth Circuit explicitly approved this power, a decision which stands because the Supreme Court cowardly refused to rule on it on "mootness" grounds after the Bush administration, right before the Court was to hear the case, finally charged Padilla with crimes in a civilian court.

It's true that the Obama administration has not sought to hold any U.S. citizens in military custody (they apparently prefer the assassination route to the indefinite detention route). It's also true that, to their genuine credit, the Obama White House has strenuously objected to the military detention provision of the bill to the extent it applies to U.S. citizens on American soil, arguing that such a power "would be inconsistent with the fundamental American principle that our military does not patrol our streets." But even there, the essence of this bill - that the entire world is a battlefield, including (by definition) U.S. soil - has long been (as I've always argued) the most important and most dangerous component of the Bush/Cheney War on Terror, because it means the President can exercise "war powers" anywhere in the world against anyone he accuses of being a "belligerent." And that premise is one that has been fully embraced by Obama officials as well.

Indefinite, charge-free military detention of people accused - accused - of Terrorism has been fully embraced by both the Bush and Obama administrations (it's one of the reasons some of us have been so vocally critical). The Obama administration has gone even further and argued that it has the power not merely to detain accused Terrorists (including U.S. citizens) without due process, but to kill them. It is true that the Obama DOJ has chosen to try some accused Terrorists in civilian courts - and this bill may make that more difficult - but the power of military detention already rests with the Executive Branch. And while it would be worse for Congress to formally codify these powers and thus arguably overturn long-standing prohibitions on using the U.S. military on U.S. soil, the real legal objections to such detention are grounded in Constitutional guarantees, and no act of Congress can affect those. In sum, this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest. That's not a mitigation of this bill's radicalism; it's proof of how radical the Executive Branch under these two Presidents has already become.

Expanded AUMF

We have the same story with this provision. On paper, Levin/McCain would expand the War on Terror by codifying more expansive language defining the scope of the conflict than is contained in the 2001 AUMF. The old AUMF only authorized force (which the Supreme Court found includes military detention) "against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided" the 9/11 attack and those nations which harbored them. By contrast, Levin/McCain would also authorize force against "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." This is intended to allow force to be used against groups that did not even exist at the time of 9/11 - such as the ones in Yemen and Somalia - as well to allow force against persons who may not be a member of those groups but who provide "substantial support."

Here again, though, this is already what the U.S. Government is doing. The Obama administration has repeatedly insisted - and some courts have accepted - that the 2001 AUMF already includes not only Al Qaeda but "associated forces." Thus, insists the Obama administration, it has the right to bomb Yemen and Somalia under the terms of the 2001 AUMF even though the targeted groups didn't even exist at the time of the attack - and to detain people who had nothing to do with 9/11 - because they are already interpreting the 2001 AUMF in the same way as Levin/McCain define the war: Al Qaeda and "associated forces," and not just members of Terrorist groups but those who "substantially support" such groups.

Critically, this is a large part of why the Obama administration feels free to oppose Levin/McCain even though the bill overtly authorizes the numerous covert wars the Obama administration is already fighting: because the Obama administration already interprets the the 2001 AUMF so broadly as to vest them with all of the war-fighting powers in Levin/McCain. Again, it would be worse if Congress overtly expands the 2001 AUMF's language defining the scope of the W ar on Terror, but that expansion has long been and still is the de facto and even de jure reality.

Restrictions on GITMO transfers

The Levin/McCain bill also restates many of the restrictions previously imposed by Congress on the transfer or release of Guantanamo detainees. In some instances, it actually loosens some of those restrictions. But it essentially reaffirms the Congressional blockade against the closing of Guantanamo.

This issue has long been one of the most misunderstood. Obama defenders will endlessly claim that it is not Obama's fault that Guantanamo remains open because Congress prevented its closure. That claim is true as far as it goes, but it does not go very far at all. As indicated above, Obama himself - long before, and totally independent of, any act of Congress - did two things to entrench indefinite detention: (1) made clear that dozens of detainees would continue to be held indefinitely and without charges; and (2) unveiled his plans not to close, but simply to relocate to Illinois, the Guantanamo system of indefinite, military detention. As he himself made clear, he never tried or intended to end Guantanamo's indefinite detention system, but merely to move it a few thousand miles North. Levin/McCain ensures that Guantanamo will remain open indefinitely, and that is Congress's - not Obama's - fault. But the continuation of the system of indefinite detention - which, along with torture, is what made Guantanamo so controversial in the first place: not its geographic location - is attributable to President Obama.

President Obama's possible veto of Levin/McCain

Most media discussions of Levin/McCain assert that President Obama has threatened to veto it. That is not quite true: the White House's statement on this bill uses language short of a full-on veto threat: "the President's senior advisers [will] recommend a veto." Moreover, former Bush DOJ official Jack Goldsmith makes a persuasive (though not dispositive) case that it is unlikely that the President would veto this bill. Most likely, it seems to me, is that the veto threat will be used to extract concessions in order to have a bill that the President will sign.

Let's be very clear, though, about what the "veto threat" is and is not. All things considered, I'm glad the White House is opposing this bill rather than supporting it. But, with a few exceptions, the objections raised by the White House are not grounded in substantive problems with these powers, but rather in the argument that such matters are for the Executive Branch, not the Congress, to decide. In other words, the White House's objections are grounded in broad theories of Executive Power. They are not arguing: it is wrong to deny accused Terrorists a trial. Instead they insist: whether an accused Terrorist is put in military detention rather than civilian custody is for the President alone to decide. Over and over, the White House's statement emphasizes Executive power as the basis for its objections to Levin/McCain:

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa'ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation's counterterrorism professionals.

It's certainly possible that the administration is simply offering these Executive Power arguments as a fig leaf to hide their more politically difficult substantive objections to expanding the War on Terror. But that seems unlikely in the extreme, given that - as I have documented - most of these powers are ones expressly claimed and used already by the Obama administration. Does anyone believe that the same President who kills his own citizens without a whiff of due process or transparency is suddenly so concerned about the imperatives of due process? Indeed, Marcy Wheeler has repeatedly suggested that, in some important respects, Levin/McCain could actually limit Executive Power beyond what the Obama DOJ has seized, and for that reason, has mixed feelings about the Udall amendment to remove it:

As I have repeatedly described, I have very mixed feelings about the debate over Detainee Provisions set to pass the Senate tonight or tomorrow. I view it as a fight between advocates of martial law and advocates of relatively unchecked Presidential power. And as I've pointed out, the SASC compromise language actually limits Presidential power as it has been interpreted in a series of secret OLC opinions.

I'm willing to believe that there is genuine White House opposition to having the military detain and imprison U.S. citizens on U.S. soil, and that's commendable if true (though it's a sign of just how extremist our government is that we're grateful for that). Indeed, the Obama administration has opted for civilian trials for accused Terrorists captured on U.S. soil (outside of Padilla, so, too, did the Bush DOJ, and even Padilla was eventually charged). 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 that regard, the "debate" over this bill has taken on the standard vapid, substance-free, anti-democratic form that shapes most Washington debates. Even Democratic opponents of the bill, such as Mark Udall, have couched their opposition in these Executive Power arguments: that it's better for National Security if the CIA, the Pentagon and the DOJ decides what is done with Terrorists, not Congress. In other words, the debate has entailed very little discussion of whether these powers are dangerous or Constitutional, and has instead focused almost entirely on which of Our Nation's Strong National Security Experts should make these decisions (one of the few exceptions to this is Rand Paul, who, continuing in his New-Russ-Feingold role on these issues, passionately argued why these powers are such a menace to basic Constitutional guarantees). In sum, the debate is over who in the National Security Priesthood should get to decide which accused Terrorist suspects are denied due process, not whether they should be.

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If someone had said before September 11 that the Congress would be on the verge of enacting a bill to authorize military detention inside the U.S., it would be hard to believe. If someone had said after September 11 (or even after the 2006 and 2008 elections) that a Democratic-led Senate - more than ten years later, and without another successful attack on U.S. soil - would be mandating the indefinite continuation of Guantanamo and implementing an expanded AUMF, that, too, would have been hard to believe. But that's exactly what Congress, with the active participation of both parties, is doing. And the most amazing part of it all is that it won't change much, because that is more or less what Washington, without any statutory authorization, has already done. That's how degraded our political culture is: what was once unthinkable now barely prompts any rational alarm - not because it's not alarming, but because it's become so normalized.

UPDATE: Just to underscore what is - and is not - motivating the Obama administration's objections to this bill, Sen. Levin has disclosed, as Dave Kopel documents, that "it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power," on the ground it would unduly restrict the decision-making of Executive Branch officials. In other words, Obama officials wanted the flexibility to militarily detain even U.S. citizens if they were so inclined, and are angry that this bill purports to limit their actions.

That, manifestly, is what is driving their objections here: not a defense of due process, but a demand that Congress not interfere with their war. As John Yoo put it back on September 25, 2001, in a secret memo insisting on Congressional powerlessness: "These decisions, under our Constitution, are for the President alone to make." The Obama administration and their Senate defenders have repeatedly made clear that their real objection to this bill is that they want Executive Branch officials - in the DOJ, CIA and Pentagon - to make these decisions, not Congress, and there is no reason to disbelieve them.

UPDATE II: Any doubt about whether this bill permits the military detention of U.S. citizens was dispelled entirely today when an amendment offered by Dianne Feinstein - to confine military detention to those apprehended “abroad,” i.e., off U.S. soil — failed by a vote of 45-55. Only three Republicans voted in favor of Feinstein's amendment (Paul, Kirk and Lee), while 10 Senate Democrats voted against it (Levin, Stabenow, Casey, Pryor, Ben Nelson, Manchin, McCaskill, Begich and Lieberman). Remember: the GOP - all of whom except 3 voted today to empower the President to militarily detain citizens without charges - distrusts federal power and are strong believes in restrained government. Meanwhile, even The American Spectator has a more developed appreciation of due process than these Senate Democrats and the White House.