Wednesday, December 07, 2011

Law Professors Outraged by Senate Vote on Indefinite Detention

By William Fisher

Ray McGovern is one of our country’s most credible contrarians. When the ex-CIA officer talks, I tend to listen. Some of what I heard last week made my hair stand on end. Here’s part of what Ray said:

In an article on Consortium News, entitled “Are Americans in Line for Gitmo?” Ray wrote:

“Ambiguous but alarming new wording, which is tucked into the National Defense Authorization Act (NDAA) and was just passed by the Senate, is reminiscent of the “extraordinary measures” introduced by the Nazis after they took power in 1933.

“And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own Constitution. As one German writer observed, ‘With sheepish submissiveness we watched it unfold, as if from a box at the theater’.

“The writer was Sebastian Haffner (real name Raimond Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin, but helpless to stop it since, as he put it, the German people ‘collectively and limply collapsed, yielded and capitulated’.

“’The result of this millionfold nervous breakdown’, wrote Haffner at the time, ‘is the unified nation, ready for anything, that is today the nightmare of the rest of the world’. Not a happy analogy.”
McGovern writes, “The Senate voted to authorize – and generally to require – ‘the Armed Forces of the United States to detain covered persons’ indefinitely. And such ‘covered persons’ are defined not just as someone implicated in the 9/11 attacks but anyone who ‘substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces’.”

He says the Senate “clearly wished for the military’s ‘law and order’ powers to extend beyond the territory of military bases on the theory that there may be “terrorsymps” (short for “terrorist sympathizers”) lurking everywhere.”

And McGovern asks: “Is the all-consuming ten-year-old struggle against terrorism rushing headlong to consume what’s left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention — or worse?”

He adds, “A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain, R-Arizona, and Lindsey Graham, R-South Carolina, to claim that the bill’s stringent provisions do apply to U.S. citizens, as well as non-citizens.”

Well, and no doubt predictably to Ray McGovern, the Senate last week passed the National Defense Authorization Act. In doing so, it intentionally left unanswered what Ray McGovern calls “a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States, strip them of their constitutional rights, and hold them in military custody indefinitely and without a trial.”

In passing the legislation – which still needs to be reconciled with a House bill – the Senators ignored the advice of virtually every senior figure in the military and the intelligence community. Carl Levin, powerful Democrat from Illinois, led the Committee.

And in passing this legislation the Senate, in effect, also thumbed its nose at the Supreme Court, which presumably settled this question in 2004 in the case of Hamdi v. Rumsfeld. Hamdi was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge.

Members such as Senator Lindsey Graham, Republican of North Carolina, says American Qaeda suspects arrested in the United States should not be exempted from battlefield-style detention. He said on the Senate floor, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”

That construct was built on the premise laid down by former President George W. Bush in the aftermath of the 9/11 attacks. The president decided, in effect, that if the president did it, it was legal. Largely on that basis, he made the most sweeping power grab in recent political memory.

And, during his Administration, there were two cases of people held as enemy combatants arrested inside the United States, one of them a citizen. Lower courts reached contradictory opinions about whether holding them in indefinite military custody was lawful, and they were transferred to the civilian system before the Supreme Court weighed in.

There were other senators, like Mike Lee, Republican of Utah, said citizen terrorism suspects should retain their “fundamental civil liberties” in order to protect the founding principles of the United States. “I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them,” he said. But they were shamefully outnumbered and the bill passed 93-7.

Against this background, the Public Record asked a group of distinguished law professors, “Do our government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial?”
Here are parts of their answers:

Lt. Col (Res.) David Frakt, professor at Barry College of Law, Frakt defended Guantanamop detainee, Mohammad Jawad, an alleged combatant facing charges for events that took place when he was a minor. Jawad is one of two detainees, along with Omar Khadr, to be prosecuted at Guantanamo for acts they allegedly committed while juveniles.

“My opinion is this: There is no Constitutional authority to detain a U.S. citizen inside the United States and place him or her in military detention at all, regardless of the nature of the crime of which the individual is suspected, with the possible exception of a U.S. citizen who has actually joined a foreign military with which we are at war, as in the case of Ex Parte Quirin during World War II.

“As for non U.S. citizens. Terrorists, regardless of nationality are simply criminals. If they are arrested committing or attempting to commit a crime domestically, they should be treated as ordinary criminals. If they are attempting to engage in armed conflict with U.S. armed forces overseas, then they can be detained under the law of armed conflict.

“There is no meaningful distinction between a foreign terrorist like the persons who tried to blow up the World Trade Center or Omar Farouk Abdulmutallab and a domestic terrorist like Timothy McVeigh. They all want to kill innocent American civilians by blowing things up. While they all may well have useful information to provide law enforcement, the Constitution does not permit that information to be extracted involuntarily or through indefinite military detention. Much as politicians like Senator Graham would like to disregard the Constitution in pursuit of the impossibly elusive goal of perfect security, doing so not only diminishes us a country, but plays right into the hands of our enemies, who will only exploit our apparent hypocrisy for propaganda and recruiting purposes.”

Kathy Manley, an Albany (NY) Criminal defense attorney and vice-president of the Capital Region Chapter of the New York Civil Liberties Union ( NYCLU).

“Do they have the power to do it? Apparently so, unless we can stop them. But it is clearly illegal, under the Due Process Clause and Treason Clauses of the Constitution (as well as others), the Posse Commitatus Act and a variety of other laws. The problem is that neither Congress, the President or even the courts seem to have the slightest inclination to uphold the rule of law. That task is therefore falling to the people, who, other than a handful of civil libertarians, had been woefully deficient in doing anything about it.

We have to stop this before all our rights are gone.”

Francis Anthony Boyle, professor of international law at the Illinois State University College of Law:

“Of course not! Every person here in the United States—citizens and aliens alike—is entitled to all of the protections set forth in the Fourth, Fifth and Sixth Amendments to the U.S. Constitution, inter alia. They are also entitled to all of the protections set forth in the International Covenant on Civil and Political Rights, a treaty to which the United States is a contracting party and thus “the Supreme Law of the Land” under Article VI of the U.S. Constitution.

“What the American People are witnessing now with this new proposed legislation is the further development of an American Police State into a Military Dictatorship, a process that was started by the so-called USA Patriot Act in 2001. President Obama must veto it or else America will lose all pretense of having our Military subjected to the control of democratically elected civilian leaders as originally envisioned and required by the Constitution.

Peter Shane, professor of law at Ohio State and currently visiting professor of law at the Harvard law school:

“I can do no better than quote the dissent of Justice Scalia – Justice SCALIA – in Hamdi v. Rumsfeld, 542 U.S. 507 (2004): ‘The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.’

“Again, quoting Scalia: ‘Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge’.”

If the Senate version emerges from the House-Senate reconciliation committee looking like the Senate version – and Obama signs it – we will be fully in the thrall of the George W. Bush-Dick Cheney-John Ashcroft-Donald Rumsfeld mafia.

The Senate will have done what the Senate seems to do best these days: Kick the can down the road.