Bachmann Was Almost Right: The ACLU Is in Cahoots with the CIA

As I have puzzled over the civil liberties and human rights communities’ stance on the NDAA Detainee Provisions, I’ve come to the unfortunate conclusion that Michelle Bachmann was not far off when she claimed, “Barack Obama … has essentially handed over our interrogation of terrorists to the ACLU. He has outsourced it to them.”

After all, in the guise of “fixing” some of what I agree are problems with the Detainee Provisions–the laws regarding detention and interrogation of detainees–the ACLU is telling its members to lobby for the Udall Amendment to the NDAA.

But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.

In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

As a threshold matter, the ACLU’s  support of the Udall Amendment appears to put them on the same side of the debate as–among others–former CIA exec John Brennan and the former Director of the CIA, Leon Panetta. (Current CIA Director and outspoken detention authority while still at DOD, General David Petraeus, has been eerily quiet over the last several weeks.)

And I do agree with the ACLU that the Udall Amendment sets up an orderly review of detention power.

But, as I’ve noted, there’s one aspect of the Detainee Provisions that Udall doesn’t leave for orderly review: the scope of the language describing a “covered person.” Instead, Udall’s Amendment says covered people should be those “whose detention … is consistent with the laws of war and based on authority provided by” the 9/11 and Iraq AUMFs, as well as “any other statutory or constitutional authority.”

(b) Covered Persons.–A covered person under this section is any person, other than a member of the Armed Forces of the United States, whose detention or prosecution by the Armed Forces of the United States is consistent with the laws of war and based on authority provided by any of the following:

(1) The Authorization for Use of Military Force (Public Law 107-40).

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

Udall pretty much unilaterally reasserts the application of the AUMFs (plural) and other vaguely defined legal bases to detention (and, because that’s how OLC has built up Executive Power over the last decade, a bunch of other things), in an effort to defeat SASC’s language that limits such detention authority to those tied directly to 9/11 or “who [were] part of or substantially supported al-Qaeda, the Taliban, or associated forces.” Udall’s Amendment may give SSCI and SJC another shot at this law, but it dictates that detention authority apply to a far broader group of people than the SASC language describes.

Hey, Mark. See that calendar? We’re not going to pass and sign this bill before December 1. We’re due to pull our troops out of Iraq by the end of that month. Are you telling me we need to include that language for less than 31 days? Or just to provide a bubble during which the Administration can do whatever it wants with Ali Mussa Daqduq, the alleged Hezbollah agent in US custody presenting so many legal dilemmas for us in Iraq? Or are you instead applying the AUMF for a war that is effectively over to grant the President authority to hold a much broader category of “terrorist” than the 9/11 AUMF authorized? Why, at this late date, are you including the Iraq AUMF?

Given your “based on authority provided” language, I assume it is the latter, meaning this attempt to do an orderly review of detention authority also mandates that that detention authority be applied as if the Iraq war were not ending.

And all that’s before you consider the “any other statutory or constitutional authority for use of military force,” which seems to say that in any circumstance in which Congress has authorized some use of military force, Udall’s Amendment also piggybacks detention authority … and whatever else (like assassination and wiretap authority) gets built off of detention authority in secret by the OLC.

The Udall Amendment, while giving the Senate Intelligence and Senate Judiciary Committees an opportunity to weigh in on what the President must and can do with detainees, goes far beyond the language in the SASC version of 1031, which reaffirmed the war on terrorists, but only on terrorists who have anything directly to do with, or are associated with, 9/11.

I may be badly misreading this. But as I understand it, the ACLU is basically lobbying to codify a vastly-expanded AUMF that will serve to legitimize many of the intelligence community’s most egregious civil liberties abuses, not just on detention, but on a range of other “war powers,” like wiretapping and assassination.

And while that may not be the same as outsourcing interrogation to the ACLU–as Bachmann described it–it does amount to using the ACLU to give sanction to a broad expansion of Executive war and surveillance powers the likes of which the CIA loves to exploit.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

12 replies
  1. MadDog says:

    I’m still taking Levin’s and McCain’s (and perhaps now Udall’s) promises of “don’t believe your lying eyes” as their own examples of wishful thinking.

    Each of them seems to be saying that no one could possibly stretch and contort their legislation and amendments to do bad things. Just trust us!

    So, what’s up with the ACLU? Did a fit of naivete suddenly come over them? And no, EW, I don’t think you are misreading things.

  2. Mary says:

    You’d have to think Kuwait would be interested in this too. After all, with us mercenaries in Iraq and us assassination and kill or capture teams moving to Kuwait under a classified,blanket SOFA that allows for any kind of criminal acts without Kuwait being allowed to intervene, it might be useful for them to have sime idea of what they are getting themselves into. And what happens, under either bill, to things like authority to kill Iranian scientists? Can the us snatch, or just assassinate, the Kuwaiti MP mentioned in this story and/or sabotage the buildings, and how many Kuwaiti civilians cab they kill while they are at it and does it matter while they have immunity in Kuwait? It seems like things other than cross border forays into Iraq might be implicated.

    Does either bill say anything about the process of affirmatively moving people snatched elsewhere to someplace like bagram?

  3. Daisee says:

    I’ve been reading Creighton’s blog posts about the Udall Amendment. One sentence scared the hell out of me

    “Udall’s proposal suggests letting globalist Hillary Clinton and her puppets rewrite something akin to the John Yoo torture memos. As written, section 1031 specifically states that it does NOT extend the powers of the executive branch under current interpretations of the war powers act whereas Mr. Udall’s proposed amendment clearly DOES provide for that end result.”

    It’s wonderful to have found emptywheel – thank you so much for sounding the alarm from a dif. perspective. It seems you and Creighton are amazingly detail oriented. Creighton is also calling out Anders and the ACLU.

  4. b2020 says:

    It is always idiotic for an organization like the ACLU to support a specific piece of legislation, esp. if it is defensive, i.e. purports to be “suck less” amendments. The political process is so corrupt that the only safe legislation is one never passed, followed by one wholesale.

    The NRA just says “if you vote for this, we will destroy you”.

  5. PeasantParty says:

    I’m sick to death of this “Homeland” garbage! You’d think Stalin was still alive and running this joint.

    I also still say that we have never Declared War and are not at War. We are playing Empire with the world and it is a horrid game of wealth grabbing and Economic swindle.

    Go, Marcy! SCOOP-Zoom!

  6. klynn says:

    Marcy, this is a fantastic post. Simply fantastic.

    Thank you.

    But as I understand it, the ACLU is basically lobbying to codify a vastly-expanded AUMF that will serve to legitimize many of the intelligence community’s most egregious civil liberties abuses, not just on detention, but on a range of other “war powers,” like wiretapping and assassination.


    …it does amount to using the ACLU to give sanction to a broad expansion of Executive war and surveillance powers the likes of which the CIA loves to exploit.

    Right again.

    Really well done. I hope this post gets attention.

  7. Timbo says:

    The ACLU IS a political creature. I remember back in 1994 when I got a letter from them praising the Clinton administration to high heaven and Bill Clinton personally for all his work on civil liberties, etc. At the same time, the Clinton administration was expanding the “war on drugs” pot intradictions in Northern California. Many ACLU members complained and the letter was rescinded with an apology to the membership. This sounds like a similar case where the ACLU is doing a crappy job of much of anything when it comes to supporting legislation. The ACLU should be objecting strenuously to any move to widen any sort of detention powers, especially and particularly where it comes to the concept of “perpetual and indefinite period of war”!

  8. ack says:

    So now should I stop my monthly contributions to the ACLU?

    Or just complain to them?

    I’d like to think that they are still on my side, but this type of endorsement, as you say, makes me wonder.

  9. Timbo says:

    Complain to them. As I said above, they did change their stance in 1994 when a LOT of members complained that the ACLU was being partisan for no good reason.

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