Efforts to Combat Levin-McCain Don’t Do Anything to Prohibit Indefinite Detention of Americans

When he gets defensive, Carl Levin can be tremendously cantankerous (sometimes that’s a good thing, but not when he’s pushing terrible law like the detainee provisions in the Defense Authorization).

That cantankerous Carl Levin of late started repeatedly invoking Hamdi in response to claims the Levin-McCain language newly subjects American citizens to indefinite detention.

Now, in terms of constitutional provisions, the ultimate authority on the constitution of the United States is the Supreme Court of the United States, and here is what they have said. In the Hamdi case about the issue which both our friends have raised about American citizens being subject to the law of war. “A citizen,” the Supreme Court said in 2004, “no less than an alien, can be part of supporting forces hostile to the United States and engage in armed conflict against the United States. Such a citizen,” referring to an American citizen, “if released would pose the same threat of returning to the front during the ongoing conflict.” And here is the bottom line for the Supreme Court. If we just take this one line out of this whole debate, it would be a breath of fresh air to cut through some of the words that have been used here this morning, one line. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” Okay? That’s not me, that’s not Senator Graham, that’s not Senator McCain. That’s the Supreme Court of the United States recently. “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.” [my emphasis]

He’s being insufferable, but when I see claims that the new AUMF language–which actually may impose new limits on the use of the AUMF from the current known usage–is what makes it legal to indefinitely detain US citizens, I’m sympathetic to his stubborn repetition.

This law doesn’t codify indefinite detention. SCOTUS already did that in Hamdi.

I’m sympathetic to Levin’s cantankerous repetition because of what I see as the real problem with those attacking the detainee provisions because they purportedly codify indefinite detention of Americans (as opposed to a range of other superb reasons to oppose the language). None of the supposed fixes to the detainee provisions–neither defeat of the provisions outright nor the Udall Amendment–does a damn thing to limit the indefinite detention of American citizens. On the contrary, both simply allow the President–whether it be President Obama or a future President (say) Gingrich–to continue interpreting the AUMF as he or she sees fit (though Udall’s amendment might–if if the Administration cooperated where they’ve refused to in the past–provide transparency to such interpretations).

And that’s important. Because the only thing that has prevented the Executive from holding American citizens indefinitely in the past–it did hold Jose Padilla for a time, after all, after capturing him in the US–is the threat that courts might override that decision in a habeas review. But since the time when both Administrations moved people into DOJ custody to avoid such a review, habeas corpus has been gutted by the DC Circuit. No Administration would have to worry about holding a Padilla indefinitely based on Abu Zubadayh’s torture-tainted testimony, after all, because Janice Rogers Brown has decided that judges should not question the Executive’s intelligence reports, not even if they’re obviously flawed.

Sure, Presidents might still avoid military detention because it risks alarming Americans. It might avoid military detention because it has established so much flexibility within the DOJ system itself that military detention offers no advantage. But the reasons it would or would not use military detention have become more and more about politics, in light of habeas developments since that time.

Nothing stops the President from arresting an American and holding him in military custody except for habeas corpus. Nothing has stopped the President from doing so. No legislative efforts to guard the President’s “flexibility” on these issues will change that. And now that habeas has been gutted, that bar is even lower. But that fact is true independent of Levin-McCain.

But there are, presumably, things Congress could do to rein in the President’s authority to hold Americans indefinitely. For example, it could explicitly exempt American citizens from military detention (as SASC originally did, until the Administration asked them to take language out).

Or it could simply end the endless wars that legally justify military detention. The most concrete effort yesterday to rein in the President’s authority to detain Americans indefinitely yesterday was not the Udall Amendment, but the Paul Amendment attempting to repeal the Iraq War AUMF. That’s because OLC has used the Iraq AUMF to expand the definition of “terrorist” beyond those with a concrete tie to al Qaeda. By repealing the Iraq War AUMF, you would at least limit the types of alleged terrorists the Administration could detain. Oddly, Udall’s Amendment reaffirmed the Iraq AUMF language, even though he did vote in favor of Paul’s repeal. And at least 12 Democrats–people like Blumenthal, Coons, Kerry, Mikulski, and Schumer–who voted for the Udall Amendment voted against the Paul Amendment.

Congress could also pass language reaffirming real judicial review of habeas petitions–basically reversing Janice Rogers Brown’s crappy opinion. Presumably, Presidents would be less likely to use indefinite military detention if habeas offered a real prospect of review.

But I’m not aware of anyone screaming about indefinite detention who has proposed these things (though it’s possible someone did as an amendment).

Update: I take that back. This DiFi Amendment would do that:

SA 1126. Mrs. FEINSTEIN (for herself, Mr. Leahy, Mr. Durbin, and Mr. Udall of Colorado) submitted an amendment intended to be proposed by her to the bill S. 1867,

[snip]

On page 360, between lines 21 and 22, insert the following:

(e) Applicability to Citizens.–The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.

One “benefit” of Levin-McCain, at least, is that it has raised awareness of what is, in fact, the case already. The President has long claimed the authority, backed by Hamdi, to hold American citizens in military detention, though with exceptions like Padilla, both Bush and Obama have largely applied that authority to do different things, like wiretap everyone or kill Anwar al-Awlaki. Eliminating the threat of indefinite detention (and along with it, the targeted killing of American citizens) will require affirmative legislation, not the passivity or (worse) defense of unchecked executive power currently embraced by Democrats. It will take civil libertarians using the same heavy hand with Executive Power as Republicans (with Levin) have used to enshrine presumptive military detention.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

23 replies
  1. William Ockham says:

    The problem with Hamdi is really in four words:

    returning to the front

    The entire political establishment has bought in to the notion that “the front” is the entire world.

  2. emptywheel says:

    Incidentally, DiFi’s comment in support of her amendment made it clear she was trying to establish a legislative record in anticipation of legislation.

    Which is probably about right: this won’t pass, but it will make an alternative legal case to that in Hamdi was made.

  3. Arbusto says:

    @emptywheel: So an American Citizen gets a speedy trial ^__~, is found innocent and then can be sent to Gitmo or Bagram or some floating gulag, since there’s no explicit language about being found innocent, hence no longer a threat to national security.

    As we continue our march to a more entrenched police state.

  4. emptywheel says:

    @Arbusto: If DiFi were to pass, it would be an improvement over the status quo–a pretty significant one.

    I still think that’s a long shot. I’m guessing it’ll attract more Tea Party supporters (Mike Lee made a good speech in support, one of the better ones). But even if all the Udall voters vote for DiFi, you still need to pick up a bunch of SASC Dems, and people like Whitehouse.

    But Levin and McCain do seem fairly bitchy about it, if that’s a measure of the seriousness of it.

  5. lysias says:

    The Supreme Court also hinted in Hamdi that, if the war in Afghanistan ended, or if it went on too long, it might revisit the issue of how long a detainee could be held. It declined to rule either for or against indefinite detention, but I think it hinted that it would not be willing to uphold detention that went on too long.

  6. lysias says:

    @Arbusto: That’s what happened in Nazi Germany. If you were acquitted by a court of a political offense or of a crime that involved being “asocial”, the SS could then take you to a concentration camp for “protective custody”. Same thing happened to people released from jail after their prison terms had ended.

  7. Arbusto says:

    @EH: Wouldn’t hold your breath. It’s been so long since DiFink did anything in support of the Republic, I can’t recall and in this instance, it’s damning by faint praise.

  8. Timbo says:

    Disgusting and a complete travesty of the law and the Bill of Rights. Perhaps this is treason, when the Supreme Court decides that our rights, as garanteed in the law, no longer need apply to those tagged as “terrorist suspects”… My confidence in American law has taken a real hit today. Basically, it seems that there really is no law or ideal protecting American citizens from their government any longer. This is what the Bill of Rigths and the American revolution was about…and now it’s gone because some jerks in power can’t seem to learn to live with a vital representative democracy…if it cuts in to their personal profits and wish to abuse others? Disgusting.

  9. Timbo says:

    The very reason for the Bill of Rights is not just to prevent actual abuses but to prevent POTENTIAL abuses of individual rights. The fact that this is now just seen as a quaint convenience, given the much worse internal and external threats our (former) American representative Republic has been through in the past 225 years, much worse than the “terror war” unless you include the “terror warriors” themselves as a direct threat to the Enterprise…and now it is decided that the AUMF and the detention indefinitely of American citizens in American custody is a fine idea, that assassinating American citizens without any due process of law, without any means of appeal except to the secretary cabinet of the military arm of the United States government is, what, exactly, “Freedom”? Freedom from what? Freedom from hearing about realities that you don’t particularly care to here about? Individual liberty and the right to petition the government with grievances to difficult a straw to draw? I’m absolutely appalled by the pretzel logic used by these supposed “wizards of the law” to genuflect to the lowest ambitions of “human conscience”, our so-called legal officials, who can’t seem to do much more than generate a bunch of inconsistent semi-intellectual babble when it comes how laws are supposed to work. Again, I say that it is not surprising the mess the world is in…and unlikely many of the folks in power in Washington are capable of doing much good for the bulk of the American public, let alone humanity itself.

  10. MadDog says:

    OT – For Jim if he’s still up. Shall we expect a post tomorrow on tonight’s NYT piece on the Pakistan attack? I found this part particularly tasty:

    “On Monday, Cameron Munter, the United States ambassador to Pakistan, told a group of White House officials that a formal video statement from Mr. Obama was needed to help prevent the rapidly deteriorating relations between Islamabad and Washington from cratering, administration officials said. The ambassador, speaking by videoconference from Islamabad, said that anger in Pakistan had reached a fever pitch, and that the United States needed to move to defuse it as quickly as possible, the officials recounted.

    Defense Department officials balked. While they did not deny some American culpability in the episode, they said expressions of remorse offered by senior department officials and Secretary of State Hillary Rodham Clinton were enough, at least until the completion of a United States military investigation establishing what went wrong.

    Some administration aides also worried that if Mr. Obama were to overrule the military and apologize to Pakistan, such a step could become fodder for his Republican opponents in the presidential campaign, according to several officials who declined to be named because they were not authorized to speak publicly…”

    Campaign 2012 political considerations are now apparently officially running the entire Obama Administration show.

  11. Mary says:

    I’d like to see Lithwick’s definition of that true liberal that Kagan supposedly is. Fwiw, I do think Kagan ( and Thomas ) should recuse on the healthcare law and I’m not sold that the mandate to buy private insurance is a. Slid exercise.

    In any event , I remember back in the “olden days” at FDA when I was more caught up than I am now, explaining why the Hamdi case was no friend to anyone believing in the rule of law and that “moderate” O’Connor basically screwed the pooch while Darth Scalia made a helluva lot of sense when he explained that the “moderates” where transmorgifying the Great Writ.

    Hamdi was, despite the msm acclaim at the time about the blank check language, a frickin horrible opinion, clearly written by the brain freeze O’coonor version who was all about bush v Gore.

    Members of Comgress like to ignore the fact that the third branch of government, the Supreme Court, has already defined the battlefield. It’s places where courts are no longer open and operating. Guess what all the habeas cases from GITMO demonstrate?

    Try, that the Sup Ct has ruled that it is open and operating and has jurisdiction at GITMO, at least. No battlefield there, or anywhere else in the US.

    *sigh*. Apparently the “dent” in precedent isn’t intended to leave an impression in Congressional psyches.

  12. MadDog says:

    @MadDog: More OT – Or Jim might want to post about this NYT article:

    “Clash Between NATO and Pakistani Forces Defused

    A cross-border incident involving NATO and Pakistani forces was quickly defused early on Wednesday with no loss of life, according to Brig. Gen. Carsten Jacobson, the spokesman for the American-led international coalition here.

    Few details of the incident were immediately available but it apparently involved heavy artillery fire across the Afghanistan-Pakistan border in Afghanistan’s Paktika province…

    (My Bold)

    A sign of things to come?

  13. lysias says:

    @MadDog:

    Some administration aides also worried that if Mr. Obama were to overrule the military and apologize to Pakistan, such a step could become fodder for his Republican opponents in the presidential campaign, according to several officials who declined to be named because they were not authorized to speak publicly…”

    So my suspicions were correct that in this incident this was the U.S. national security state going off on its own and attacking the Pakistani military without authorization from the president.

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