SJC

Mark Udall’s Unsatisfactory Solution to the Detainee Provisions

As I have repeatedly described, I have very mixed feelings about the debate over Detainee Provisions set to pass the Senate tonight or tomorrow. I view it as a fight between advocates of martial law and advocates of relatively unchecked Presidential power. And as I’ve pointed out, the SASC compromise language actually limits Presidential power as it has been interpreted in a series of secret OLC opinions.

Which is why I’m no happier with Mark Udall’s amendment than I am with any of the other options here.

On its face, Udall’s amendment looks like a reset: A request that the Executive Branch describe precisely how it sees the military should be used in detention.

SEC. 1031. REVIEW OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General.–Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:

(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).

(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.

(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.

On one hand, this seems like a fair compromise. The Republicans want something in writing, Carl Levin claims SASC met just about every demand the Administration made in its attempt to codify the authority, but in response the President still issued a veto threat. So why not ask the President to provide language codifying the authority himself?

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The Detainee Debate Heats Up: The Rule of Martial Law Vs. the Unitary Spookery

As I noted yesterday, Obama issued a veto threat for the detainee provisions included in the Defense Authorization. Since then, both Dianne Feinstein and Carl Levin have given speeches on the floor, arguing against (DiFi) and for (Levin) the provisions.

And while I’d be happy to see the provisions in question fail (because the provisions represent a further militarization of our country), effectively the argument being made is between those (the Republicans, enabled by Levin) who support further militarization of law and those (DiFi and, especially, the Administration) who want the Executive Branch to continue fighting terrorism (and whatever else) with an intelligence-driven approach bound by few legal checks.

DOJ’s Special Forms of Extended Interrogation and Coercion

In a sense, DiFi’s speech on Thursday looked like an appeal to rule of law. For example, she warns of the danger of “further militariz[ing] our counterterrorism efforts.” But what she really focused on in her speech–implicitly–are the tools the government has wrung out of the civilian legal system to make it easier to get intelligence (whoever picked a Senate Judiciary Committee member to be head of the Senate Intelligence Committee made this blurring of law and intelligence easier).

DiFi alludes to tools DOJ has that DOD does not. She mentions both Najibullah Zazi and Umar Farouk Abdulmutallab as people whose prosecution within the civilian justice system aided prosecution.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

[snip]

It was FBI agents who traveled to Abdulmutallab’s home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

She appears to be invoking the way we’re getting people to talk: by threatening and persuading their families. In the case of Zazi, we got him to cooperate by charging his father. In the case of Abdulmutallab, we presumably made some guarantees about treatment if his family would persuade him to cooperate (maybe that’s why he stayed in a minimum security prison through the pre-trial period; I also wonder whether we threatened his prominent banker father).

Most charitably, this is akin to the problem Ali Soufan experienced with Salim Hamdan; Soufan was about to persuade Hamdan to cooperate in exchange for a shorter sentence when DOD dumped Hamdan in Gitmo where there was no option to trade cooperation for better treatment. As the case of Omar Khadr (who was not permitted to spend time with other detainees after he plead guilty) makes clear, in military custody, we lose control of the conditions of someone’s confinement as soon as they plead guilty, and so can’t use that as a tool to get people to cooperate.

But there’s something else DiFi is not saying, though is out there. With our creative interpretation of Miranda of late, we have interrogated Faisal Shahzad for two weeks without a lawyer; Manssor Arbabsiar for 12 days; and Ahmed Warsame for a month. We got Arbabsiar (and, I would bet, Warsame) to cooperate to ensnare others during the period of pre-arraignment arrest. Thus, for better or worse, civilian detention has actually been offering the government more ways to deploy detainees in intelligence operations than military detention.

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Emptywheel Twitterverse
bmaz Also in the totally awesome to meet at #NN2014 department: @StephanieKelton @NadiaKayyali and @alexisgoldstein
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JimWhiteGNV RT @RaysBaseball: That moment when a pitcher who hasn't batted since high school executes a perfect safety squeeze. @JakeOdorizzi http://t.…
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bmaz Despite their limited stay no two more fun+incredibly awesome people I finally personally met at #NN2014 than @astepanovich + @McElweeWhite
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JimWhiteGNV RT @TBTimes_Rays: You can only hope to contain #Rays C Jose Molina, who swiped his 3rd bag of the season at the back end of a double steal.…
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JimWhiteGNV RT @ArifCRafiq: Please also visit Gaza. MT @MikeBloomberg This evening I will be flying on El Al to Tel Aviv to demonstrate that it is safe…
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bmaz @WilliamOckhamTx Pretty much that whole area of the world appears to be GohmertLand.
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bmaz The only way in the world @John_Dingell could earn more love is to say he doesn't know similarly worthless chumps Kanye West, JayZ+Beyonce.
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bmaz I have never been prouder of @John_Dingell in my life than him not knowing squat about the worthless Kardashian idiot clan.
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JimWhiteGNV RT @onekade: The rockets are extremely dangerous and horrible but also Israel is open for business as usual, nothing to fear! Ok
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bmaz It appears the Ukranian government has the combined credibility of Peter King and Steve Stockman. #GoodEnoughForJoshEarnestAndCNN
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JimWhiteGNV RT @Ali_Gharib: We are so terrorized by rockets that we need to make war. We are so safe that you should fly all your planes here.
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emptywheel After Bloomberg proves it's save to fly into Ben-Gurion, can he also prove it's safe to sail a relief flotilla into Gaza?
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