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Editorial: Do we still have rights? Not sure

December 21, 2011

By Richard S. Gubbe
Contributing Writer

The National Defense Spending Bill, with versions that passed in both the House and Senate recently, has again stirred up civil rights proponents who say if this bill is signed by President Barack Obama, basic civil rights of Americans will cease to exist.

Politicians who voted on the bill insist that’s not true. Yet, others in Congress and rights activists have called in question the final legislation as stripping away all basic rights. Congress and the president, many believe, now have the power to imprison anyone at any time for anything construed to be a “terrorist act.”

After passing both the Senate and the House, a conference committee was created to combine both bills, which passed within a week of one another. The president is expected to sign the final version of the bill.

Republican presidential candidate U.S. Rep. Ron Paul, R-Texas, called the bill “bold, arrogant and dangerous.”

Is this a blanket step toward tyrannical rule?

This annual legislation that authorizes money for the military and weapons systems usually passes without a hitch. Not this year. And yet, the mainstream media have brushed it aside to talk about the economy and election politics. Despite the fact both sides of Congress can’t pass anything this year without a dog fight, the House vote was 283-136, reflecting rare bipartisanship.

One smokescreen used to confuse and bewilder is that there are many versions of this bill out on the web, from the original draft last May to the different versions that surfaced this month.

The latest bill allows the military to take custody of a suspect deemed to be a terrorist, but there is a supposed exemption for U.S. citizens.

However — and the big however to rights activists — comes with the clause that the bill also says the president can waive the provision based on national security.

Does that mean the FBI, the military and the president now have carte blanche over arrests? Does the president trump all?

The White House website has little to say about the subject.

The Associated Press reported that FBI Director Robert Mueller expressed concern about the detainee provisions.

Mueller said: “The statute lacks clarity with regard to what happens at the time of arrest. It lacks clarity with regard to what happens if we had a case in Lackawanna, N.Y., and an arrest has to be made there, and there’s no military within several hundred miles. What happens if we have … a case that we’re investigating on three individuals, two of whom are American citizens and would not go to military custody, and the third is not an American citizen and could go to military custody?”

Although the fight over whether to treat suspects as prisoners of war or criminals has divided Democrats, Republicans, the Pentagon and Congress, little of the debate has been captured by the media.

Has Congress slyly stripped Americans of the right to a trial and holding them for any length of time without giving a reason for detention?

Here is some of the language found on page 655 of this mammoth document:

Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”

And, “Nothing in this section 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.”

Confused? That’s understandable.

House members offered varying interpretations of the military custody language and indefinite detention provisions, including U.S. Rep. Don Manzullo, R-Ill.

Rich Carter, director of communications for Manzullo, told The Rock River Times: “The Defense bill that the Congressman supported yesterday was changed to explicitly exempt American citizens from detention. There’s a lot of confusion surrounding this right now, but I can tell you he never would have supported a bill that allows military detention of American citizens.”

Manzullo responded to the chaos with the following letter “to clarify some of the confusing elements” of the legislation:

There has much confusion in recent days about the detention provisions that are contained in the Fiscal Year 2012 Department of Defense (DoD) Authorization bill (H.R. 1540/S. 1867). As a Member with one of the strongest pro-constitutional voting records in Congress, as evidenced by my opposition to the extension of the PATRIOT Act and federal involvement in primary and secondary education, I take my oath of office to protect and preserve the Constitution very seriously.

I want to be very clear — I do not support any role for the U.S. military to arrest, detain, or prosecute any U.S. citizen arrested on U.S. soil. Every U.S. citizen deserves the full protection of our constitutional rights, even to those who commit acts of terrorism.

That is why I was originally concerned with a version of the DoD Authorization bill (S. 1867) that passed the Senate Armed Services Committee (SASC) last November. It originally contained two provisions that could have been interpreted to give overly broad authority to the U.S. military to detain U.S. citizens seized on U.S. soil for being affiliated with al-Qaeda or any associated terrorist force. Because of the furor this created outside of the Beltway, on December 1, 2011, the Senate fortunately adopted a ‘catch-all’ amendment authored by Senator Diane Feinstein (D-Calif.), who is also the Chair of the Senate Intelligence Committee, at the end of these two sections that this does not apply to U.S. citizens or legal U.S. residents.

The Feinstein amendment passed by an overwhelming bipartisan vote of 99-1, with the support of Senators such as Mike Lee, Jim DeMint, Pat Toomey, Ron Johnson and Rand Paul.

However, because there was still some concern with this language, when the bill went to a conference committee to reconcile the two competing versions of the DoD Authorization bill, the conferees made further changes to the sections to make it absolutely crystal clear that the detention provisions do not apply to U.S. citizens and legal residents. This language can be found on Page 655, lines 14 through 18, and Page 657, lines 10 through 22 of the conference report to accompany H.R. 1540 (http://www.rules.house.gov/Media/file/PDF_112_1/legislativetext/HR1540conf.pdf). There is confusion over this issue because some reports reference language in older versions of this bill so the link above is the most up-to-date version that passed the House on December 14.

It is also important to put this issue into context. First, Section 1022, the provision of most concern, is entitled, ‘Military Custody for Foreign al-Qaeda Terrorists.’ Thus, the entire point of this section (mandatory military custody for al-Qaeda terrorists) only applies to foreigners. If that wasn’t clear enough, the conferees added explicit language in paragraph (b) to doubly ensure that this section doesn’t apply to U.S. citizens and legal residents.

The entire purpose of this section is to avoid a repeat of the situation in 2009 that confronted U.S. authorities when the ‘Christmas Day’ bomber was seized in Detroit, Michigan, after his flight from the Netherlands. Umar Farouk Abdulmutallab, who had a Nigerian passport, was arrested by civilian law enforcement authorities and read his Miranda rights. As a result, U.S. military and intelligence authorities lost the opportunity to obtain valuable information that could have led to uncovering other terrorist plots. Section 1022 would change protocol so that if a future foreign al-Qaeda affiliated terrorist is seized on U.S. soil, then he/she would enter U.S. military custody. To give even more flexibility to the U.S. government Section 1022 provides a waiver authority to the President (with applicable reporting requirements to Congress) if he decides to prosecute the foreign terrorist seized in the U.S. through the civilian process.

Finally, Section 1021 is a restatement of current detention policy, under the 2001 authorization of the use of force, so that it is part of statutory law to give clarity to the Executive and Judicial Branches. Again, this section only applies to foreigners. Nothing in this section affects existing law or authorities as it relates to U.S. citizens. Thus, habeas corpus applies, as it has always applied, to U.S. citizens because it is existing law. No U.S. citizen can be indefinitely detained without knowing what crime he or she is alleged to have committed. The U.S. Supreme Court reaffirmed the habeas corpus rights of U.S. citizens, even those seized overseas on the battlefield in Hamdi v. Rumsfeld (2004). The U.S. does not, and the Pentagon has no plans to, indefinitely detain any U.S. citizen in military custody. This language also ensures that the U.S. military or the intelligence community, still, cannot engage in any domestic law enforcement matters because that is existing law.”

In contrast, Rep. Jerrold Nadler, D-N.Y., the ranking member of the House Judiciary Subcommittee on the Constitution, made a passionate speech on the House floor before the vote. Following are some of Nadler’s remarks: “Mr. Speaker, it has been a decade since the attacks of Sept. 11, 2001. As a nation, no matter what adversity we’ve faced, we have done so as Americans. We have united behind the values that gave birth to this nation and that have made it a moral force in the world. More than our military or economic strength, it has been the strength of our values and our example that has made us the world leader we are today.

We are in danger of losing that most precious heritage, not because a band of murderous thugs threatens our freedom, but because we are at risk of forgetting who we are and what makes the United States a truly great nation.

In the last 10 years, we have begun to let go of our freedoms, bit by bit, with each new executive order, court decision, and — yes — act of Congress. We have begun giving away our rights to privacy, our right to our day in court when the government harms us, and, with this legislation, we are continuing down the path of destroying the right to be free from imprisonment without due process of law.

The changes in this bill to the law of detention have major implications for our fundamental rights. We should not be considering this as a rider to the Defense Authorization Bill. This should be the subject of close scrutiny by the Judiciary Committee. The complex legal and constitutional issues should be properly analyzed, and the implications for our values carefully considered.

You will hear that some of what is in this bill is already the law. That may be, although many legal scholars tell us that it goes a great deal further than what the law allows now. You will hear that it really won’t affect U.S. citizens, although, again, there is credible legal authority that tells us just the opposite. You will hear that it doesn’t really turn the military into a domestic police force, but that clearly isn’t the case.

Most of all, you will hear that we must do this to be safe, when the opposite is true. The truth that the founders understood is that a people who will willingly sacrifice their core liberties — as this bill does — are already lost. We can never be safe without our liberties, and this bill continues the decade-long campaign to destroy those liberties.

This bill goes far beyond the Authorization for the Use of Military Force. That resolution authorized ‘all necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons.’

This bill is not limited to those responsible for the Sept. 11th attacks, and those who aided or harbored them. It includes anyone who ‘substantially supported’ al-Qaeda and the Taliban or ‘associated forces that are engaged in hostilities against the United States or its coalition partners.’ It is not clear what is meant by ‘substantially supported,’ or what it takes to be ‘associated’ with someone who ‘substantially supported’ them. It refers to any ‘belligerent act’ or to someone who has ‘directly supported such hostilities in aid of such enemy forces.’ It doesn’t, as does our criminal law, say ‘material support,’ so we really don’t know whether that support could be merely a speech, or an article, or something else. …

Whoever it reaches, the government would have the authority to lock them up without trial until ‘the end of hostilities,’ which, given how broadly the AUMF has been used to justify actions far from Afghanistan, is an open-ended, worldwide war. That might mean forever.

And who will be taken out of the civilian justice system and imprisoned forever without a trial? The bill says anyone who ‘is determined’ to be covered by the statute. It doesn’t say ‘determined’ by whom, or what protections there are to ensure that an innocent person doesn’t disappear into a military prison.

Section 1022(c) simply requires the President to issue procedures ‘designating the persons authorized to make determinations … and the process by which such determinations are made.’ No requirement for review, no requirement for due process, nothing. Only the President can sign a waiver, but a perhaps low-level functionary may decide who is detained by the military forever. That’s not America.

We also need to be clear that the so-called ‘Feinstein amendment’ does not really provide the protection the sponsor intended to provide.

It says that ‘nothing in this section 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.’

So, what are ‘existing law and authorities’? As former FBI Director William Sessions has recently written ‘the provision does not limit such detention authority to people captured on the battlefield. … The reality is that current law on the scope of such executive authority is unsettled.’

Director Sessions goes on to point out that in the two cases where the Supreme Court might have decided the question of detaining a U.S. citizen or a legal permanent resident, the U.S. claimed that the President had the authority to detain a suspected terrorist captured within the United States indefinitely without charge or trial. In both these cases, Padilla and al-Mari, the government changed course and decided to try them in civilian courts in order to avoid a court ruling on the question.

So, when the Feinstein amendment references ‘existing law,’ you should not assume that means that current law clearly deprives the President of this dangerous power. I hope it does, but it is still, legally, an open question. We should ensure that our liberty is protected and not leave that question to some future court.

If the Senate had wanted to make clear that a U.S. citizen could not be detained forever without charge, it could have said so unambiguously, but it did not. At best, we are shooting dice with our liberties and hoping that a federal court, down the line, will rule that it really does mean what the sponsors of this bill say it means.

We must take great care. Our liberties are too precious to be cast aside in times of peril and fear. We have the tools to deal with those who would attack us. We do not need to do this. We should not do this.

And, because of this momentous challenge to the founding principles of the United States — that no person may be deprived of his liberty without due process of law — this bill must be rejected.”

Civil rights groups were outraged by the legislation, and the White House’s decision to drop the veto threat.

Human Rights First website reported: “Following news that President Obama will not veto defense authorization legislation that expands the military’s role in domestic counterterrorism by sidelining the FBI and local law enforcement, authorizes the indefinite detention without trial of terrorism suspects, including Americans, undermines the independence of prosecutorial decisions, and makes Guantanamo a lobster trap even for those who have been told they can go home.”

Human Rights First President and CEO Elisa Massimino issued the following statement: “When he took office, President Obama told the American people that he would restore the nation’s commitment to the rule of law and the protection of human rights. Today’s announcement proves that he is unwilling to put his full power behind those presidential promises. … This legislation will be a loaded gun in the hands of any future administration.”

Although there was a plethora of other organizations that weighed in on the subject, the national news media didn’t file a single report on the Big Three nightly newscasts when the Senate or House bills were passed.

Hmmmmm.

What to look for in the future?

If U.S. citizens start disappearing, people may want to enact their fundamental right to civil disobedience.

From the Dec. 21-27, 2011, issue

2 Comments

  1. info_bomber

    December 21, 2011 at 9:37 am

    I would like to break down this question, because unless this is looked at in the proper light then the short answers would not give justice to question.

    “Do we still have rights?” Yes and in fact it makes no matter what “law” a government entity passes or legislates because our forefathers never imbued the government with the power of giving rights, because of this question itself, rights given by a government can be taken away by said government.

    Now has the government taken steps in a direction to have it’s people believe their rights are being taken away so that the citizenry falls into a state of hopelessness believing they would have to fight a giant system in order to assert their rights? Yes, but this is no different than the fight that happened back previous to 1776 when the rumblings of the British Empire reacting to actions of the colonists who were in turn reacting to actions being arbitrarily enforced by the King and his cohorts you can see those grievances written in the “Declaration of Independence.”

    So those legislatures stating that the government is not taking your rights are technically correct, however if they vote for the law they are for the idea of taking away citizens rights and hiding behind the curtain of disinformation. Thereby they are setting the stage for a destruction of the U.S. Constitution.

  2. John

    December 22, 2011 at 7:20 am

    Just be glad we have the ultimate defender of our rights…the Second Amendment.

    If the day ever comes when our Government runs amuck, there are at least 65 million Americans who have the tools to stand up and say NO!

    This, I believe, will prevent someone or some group perverting our constitution into tyranny.

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