|If you haven't seen the video...|
Every year, Congress has to pass a bill to fund our nation's military. This bill is called the National Defense Authorization Act, and it is slated for voting in the Senate this week under Senate Bill 1867 (this will open the bill in PDF in a new window). This matters for two reasons. One, it lays out the exact means by which the Department of Defense will acquire and spend its money. In and of itself, this is pretty important. And two, there is usually some tidbit buried in it that causes great uproar on the Hill, if not necessarily anywhere - even though it probably should. This year, the tidbit has to do with detaining suspected terrorists.
When was the last time you read 682 pages of legislative bill? Yeah, me too. However, with the wonders of technology - aka the word search feature in Adobe Reader - you can jump straight to the sections of the bill that are being debated: Section 1031-1032. Section 1031 is titled "Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force." In a nutshell, this section gives authority to the President under the AUMF to detain "covered persons" until they are dealt with according to the law of war. A "covered person" is basically anyone who had anything to do with 9/11 attacks and anyone who has anything to do with al-Qaeda and/or the Taliban (subsection b). The options for dealing with a detained "covered person" include detention without trial until the cessation of hostilities (which, this being a war on terror, will never happen), trial in a military court, transfer to a different yet appropriate court, or transfer to custody of a foreign country. So, this subsection would appear to give unqualified power to the President to detain and hold indefinitely, without trial, anyone anywhere who has been or is involved with al-Qaeda and/or the Taliban. Including, perhaps, Americans.
And this is what has the ACLU, other human rights organizations and the blogosphere in general all worked up: Americans could be detained, anywhere, at any time, if they are suspected of being involved with al-Qaeda and/or the Taliban. Even in your OWN BACKYARD!! Yes, the U.S. Military doesn't have anything else to do, so they'll be cruising your neighborhood. Other news sources have picked up on this angle and are fomenting fright of the totalitarian police state - just do a Google News search for "S.1867" and see for yourself.
All the furor in the media and blogosphere is stemming from the changes to these sections that occurred between Senate Bill 1867 and the earlier version from June, Senate Bill 1253 (this will also open in PDF, so you can do the text search). In S.1253, Section 1031 specifically stated that the authority to detain a person does not extend to U.S. citizens on U.S. territory, except to extent permitted by the Constitution. The current bill, S.1867, no longer has that text in Section 1031. What happened to it?
According to Senator Carl Levin, the primary author of S.1867, the current Administration requested the language excluding U.S. citizens in Section 1031 of S.1253 be deleted. However, he did not provide any evidence of the request, nor could I find any Statement on Administration Policy concerning S.1253. An SAP was issued for HR.1540, the House Bill that became S.1867, and while this SAP did address detainee matters, they did not concern the detention of U.S. citizens. Later, the Administration issued an SAP concerning S.1867, saying that the language in Section 1031 may open “a whole new series of legal questions” concerning detention authority. So, it would appear that the White House wants any language concerning detention to be withdrawn from the bill, and has threatened to veto if it is not done. Although Senator Udall tried to do so in his amendment, the Senate did not approve it.
So where does that leave us? With a 682-page bill to appropriate funds for our nation’s military possibly vetoed over wording in a half-page long section. Granted, a critical issue is at point here – the extent of power to detain suspects – but might not the other 681.5 pages be important enough to be signed into law?