By Richard S. Gubbe
The original version of Defense Spending Bill 1867 submitted in the United States Senate last week sent rights activists into an unnecessary tizzy. When the first version of the bill for appropriations to fund the Department of Defense came up, the bill contained language that could have allowed any American to be arrested, detained and held as long as deemed necessary as a terrorist suspect.
Media outlets and every activist organization from Occupy America to the American Civil Liberties Union chastised the Senate for taking away everyone’s civil rights. Everything from a call to arms to the use of the word “fascist” when describing our 100 senators could be found on the web.
The rush to judgment was premature.
The defense bill appropriates for fiscal year 2012 activities of the Department of Defense, military construction, defense activities of the Department of Energy, military personnel strengths and other purposes.
The bill was drafted by U.S. Sens. John McCain, R-Ariz., and Carl Levin, D-Mich., but there were 381 amendments proposed to the original bill, most of which were not adopted. The controversial text can be found in Section 1031 of this enormously cumbersome, $600 billion epic. Numerous amendments to change this section were proposed, but the most important was the one introduced by California Sen. Diane Feinstein (D) and sponsored by Dick Durbin, D-Ill.
Durbin made a passionate speech in the Senate to support the Feinstein amendment to alter the original document.
The following was contained in Durbin’s speech: “The Senator from California has not only read the law, she has written many laws, and her competence in advocating this important constitutional question has been proven over and over. So, I thank her for having the determination and courage to stand up for her convictions against some who would be critical of anyone who broaches the subject. This is a controversial subject. We are talking about the security of Americans. We are talking about terrorism.
“… We establish standards of conduct and justice, and particularly as it relates to the people who live in America, our citizens and legal residents who are in the United States. That is what this debate is about.
“This is an important bill. … But this provision they have added in this bill is a serious mistake — serious. It is serious enough for me to support Senator Feinstein in her efforts to change and remove the language. Why? First, we know the law enforcement officials in the United States of America, the Attorney General’s Office, the FBI have done a good job in keeping America safe. They have arrested over 300 suspected terrorists in the United States — over 300 of them — and they have tried them in the criminal courts of America, on trial, in public, for the world to see that these people will be held to the standards of trial as an American citizen. Of those 300, they have successfully prosecuted over 300 alleged terrorists, then incarcerated them in the prisons of America, including Marion, Ill., in my home state, where they are safely and humanely incarcerated.
“The message to the world is: We are going to keep America safe, but we are going to do it by playing by the rules that make us America. Due process is one of those rules, and it has worked. It has worked under two administrations.
“Now comes this bill and a suggestion that we need to change the rules. The suggestion is, in this measure, that we will do something that has not been done in America before. Section 1031 of this bill, for the first time in the history of America, will authorize the indefinite detention of American citizens in the United States. This is unprecedented. In my view, as chair of the Constitution Subcommittee of Senate Judiciary, it raises serious constitutional concerns.
“Senator Levin and Senator McCain disagree. In an op-ed piece for the Washington Post, they recently wrote: ‘No provision in the legislation expands the authority under which detainees can be held in military custody.’
“But look at the plain language of section 1031. There is no exclusion for U.S. citizens. So the question is, if we believe an American citizen is guilty or will be guilty of acts of terrorism, can we detain them indefinitely? Can we ignore their constitutional rights and hold them indefinitely, without warning them of their right to remain silent, without advising them of their right to counsel, without giving them the basic protections of our Constitution? I don’t believe that should be the standard.
“Now, this bill changes, unfortunately, a fundamental aspect of that. It says if an American citizen is detained and suspected to be involved in terrorism with al-Qaida or other groups, they can be held indefinitely without being given their constitutional rights.
“I appreciate that Senator Levin and Senator McCain have said they are willing to consider excluding U.S. persons, but section 1031 doesn’t. I hope they do.”
The Feinstein Amendment, which excluded U.S. citizens, passed 99-1 and the entire bill passed 93-7.
Sen. Levin, chairman of the Senate Armed Services Committee, issued the following summary Dec. 2 of detainee provisions approved Dec. 1:
“Because of the many questions that have been raised relating to the detainee provisions in the defense authorization bill, I felt it was important to provide this summary of the language approved by the Senate. I hope it will be a useful reference for those who are interested in this important issue.”
Levin’s statement included the following: “Section 1031: Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force. Section 1031 reaffirms the military’s existing authority to detain individuals captured in the course of hostilities in accordance with the law of war. The authority extends to any person who: (1) planned, authorized, committed, or aided the terrorist attacks on September 11, 2001; or (2) was part of or substantially supported al-Qaeda, the Taliban, or associated forces in hostilities against the United States. This provision codifies detention authority that has been adopted by two administrations, has been upheld in the courts, and has a centuries-long foundation in the law of war. An amendment adopted on the Senate floor by a 99-1 vote confirms that nothing in the provision “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.”
Despite Durbin’s speech and Levin’s clarification, all heck broke loose as websites issued caustic statements that said Americans were losing their civil rights and said that bill was the beginning of the end of Americans’ basic freedoms.
Perhaps the most dramatic came from the American Civil Liberties Union, which posted on its website the following: “The other 93 are traitors to the Constitution of The United States. At the very least, they should be impeached. Even if President Obama vetoes the bill, those who voted yes have got to go. They are obviously corporate property.”
U.S. Sen. Mark Kirk, R-Ill., still opposes some of the detainee provisions, even as amended by Sen. Feinstein. However, he told The Rock River Times in an e-mail that he voted to advance the bill through the process because of all of the legislation’s other important aspects, such as raising military pay.
Kirk made the following statement during a WIFR TV interview Dec. 2:
“My one concern is the legislation appears to have authorized the United States military to arrest American citizens inside the United States if there is a suspicion that they are connected to terror. I think that’s the wrong way to go. As an American citizen, you have unalienable rights under the Constitution to counsel, to a grand jury indictment, to trial by a jury of your peers be convicted beyond a shadow of a doubt. I don’t think any legislation passed by the Congress can take those rights away from you and which is why I didn’t support that section of the bill.”
Despite the confusion, the bill has been sent to the House of Representatives, where U.S. Rep. Don Manzullo, R-Ill., is well aware of the controversy and issued the following statement to The Rock River Times:
“There is no language in the Senate-passed version of the defense bill that would authorize the U.S. military to arrest and detain U.S. citizens indefinitely without trial. There was some broad language included in the version of the bill that passed the Senate Armed Services Committee, but that was changed by the Feinstein amendment when it went before the full Senate, which passed it by a vote of 99-1. Now, that provision clearly states that it does not apply to U.S. citizens and legal residents.”
Manzullo said the vote on the final version of the defense bill is expected sometime this week.
From the Dec. 14-20, 2011, issue