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Congress endorsing military detention, a new AUMF

By       Message Glenn Greenwald       (Page 1 of 2 pages)     Permalink    (# of views)   6 comments

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Carl Levin and John McCain
Carl Levin and John McCain  (Credit: Reuters/Jason Reed)

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);

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(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.

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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.

* * * * *

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:

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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.

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Glenn Greenwald is one of three co-founding editors of The Intercept. He is a journalist, constitutional lawyer, and author of four New York Times best-selling books on politics and law. His most recent book, No Place (more...)

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