I, like most Americans, want to ensure that we punish and prevent terrorism. However, we must do so in a way that protects the rights of American citizens. In his recent column, Andrew C. McCarthy simply has his facts wrong when he claims that last week’s Senate debate on the 2012 defense-authorization bill was not about American citizens. It was.
In fact, the protection of American citizens is largely what my energies last week were directed toward. The amendments I championed — both Sen. Mark Udall’s (D., Colo.) and Sen. Dianne Feinstein’s (D., Calif.) — were specifically offered in order to protect American citizens from the indefinite detention allowed in the underlying bill. All of these amendments failed, but I was able to defeat an amendment that would have allowed American citizens to be held indefinitely even after they had been tried and found not guilty.
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At no time did I argue that aliens should be given the same rights as American citizens. That was not the basis of the debate of any amendment last week. Yet Mr. McCarthy uses this strawman throughout his article. When the facts are presented clearly to Americans — that their own rights and liberties are threatened under this sort of unchecked, unconstitutional executive authority — I believe they will side with keeping their liberty.
Supporters of indefinite detention believe the U.S. Supreme Court’s decision in Hamdi v. Rumsfeld supports their view. But while the court in Hamdi held that U.S. citizens captured in combat in Afghanistan may be detained, it also held that they must, at a minimum, be granted many of the traditional aspects of constitutional due process — including a “meaningful opportunity to contest the factual basis for th[e] detention before a neutral decisionmaker,” notice of the asserted charges, an opportunity to rebut the assertions, and, most important, the right to counsel.
Also, the court’s holding pertained only to U.S. citizens captured in combat in Afghanistan. Hamdi does not address non-combatants captured in the United States. The argument in Congress this week was about whether we should expand the possibility of indefinite detention to include U.S. citizens accused of association with terrorism. This could conceivably apply to non-combatants. This could also conceivably include U.S. citizens falsely accused of association with terrorism.
If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game.
The FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of “Meals Ready to Eat,” weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color. I fear that such suspicions might one day be used to imprison a U.S. citizen indefinitely without trial. Just this year, the vice president referred to the Tea Party as a bunch of terrorists. So, I think we should be cautious in granting the power to detain without trial.
The TEXT of the Actual Bill that Rand Paul allied with the ACLU Left on:
S.1867 - SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY
(b) Applicability to United States Citizens and Lawful Resident Aliens-
(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
The bill "forbids" nothing. In fact, several prominent proponents of the bill---including John McCain and Lindsey Graham---strongly disagree with your interpretation. They have said, on record, that it DOES permit the indefinite detention of US citizens, and they seem devilishly glad of the fact. Certainly, the language of sections 1031 and 1032, while disturbingly muddy (no doubt by design), does NOT explicitly "exempt" US citizens from such detention, but only from MANDATORY military detention. Administration lawyers---and other servants of power---are no doubt prepared to construe these provisions as granting the executive *discretionary* power to commit any US citizen ACCUSED of giving vaguely-defined "support" to ill-defined enemies to a brig for the duration of hostilities----which, under the current bill, are officially interminable. And need I note that kept legal creatures have excused equally heinous executive crimes (torture and the due process-free murder of US citizens come readily to mind) with even less statutory basis?
Because - as I said earlier on McCarthy's article - they're claiming once you act as a combatant you automatically renounce citizenship. Sen. Paul grants that is the case, but asserts whether that has in fact happened does require a "neutral" fact-check, a la case law going back to 1942.
It's a bait-and-switch: Propose a law that doesn't apply to citizens, then interpret it so that anyone to whom you wish to apply it is automatically "not a citizen anymore." That's NO PROTECTION AT ALL!
And yet, the US government didn't even take away Anwar al-Awlaki's citizenship before he was killed by a CIA drone in Yemen. Awlaki was directly involved in planning attacks on Americans in America and abroad. If the government is going to readily take citizenship away from people, they would've done it to him a long time ago.
All that you, Rand Paul and the loony leftists and libertarians have done is create a straw-man. As has been pointed out by JonathanP, subtitle D Sec 1032 (b)(1) specifically exempts American citizens. Those are the facts and your claiming that the courts will ignore that provision is merely an imaginary hobgoblin to keep the populace alarmed.
I see both sides of this ever growing argument through the comments on this article.
I'll cut to the chase here, the law specifically says "not required" to detain American citizens. It does not say "is prohibited" from detaining American citizens.
Very clever wording here, but an analogy may clear things up. If I give you a slice of apple pie and say "You are not required to eat it", do I need to add "but It's up to you?" If I give you that exact same piece of apple pie and say "You are prohibited from eating it", that however construes an entirely different meaning than saying "not required."
"The requirement to detain a person in military custody under *this section* does not extend to citizens of the United States." [emphasis added].
And of course, this means that Section 1032 *requiring* detention is not applicable to U.S. citizens. Section 1031 allowing but not requiring detention, has no such condition:
"(a) ... Congress affirms that the authority of the President to use all necessary and appropriate force ... includes the authority for the Armed Forces of the United States to detain covered persons ... under the law of war.
(b) Covered Persons- ...A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- ... may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."
Clearly, under 1031, the president or unspecified members of the Armed Forces can detain without trial, indefinitely, any person accused of substantially supporting terrorism. No trial, just accusation. No limit. For as long as there is a "war" on "terror". (When, exactly, will "terror" be defeated or surrender?)
Is this the America in which you want to live? Land of the free and home of the brave? Do the 4th, 5th, 6th, and 8th Amendments to the U.S. Constitution mean anything?
I think you are misreading the word 'require'. Both sections 1031 and 1032 establish the requirement to apprehend and detain appropriate individuals. And by 'requirement', it means detention is mandatory, not optional. What section 1032 does is to further define who 'appropriate individuals' are, and it specifically excludes US Citizens from apprehension and detention under this law.
That does not mean that US citizens cannot be apprehended or detained under other laws for similar actions, but that is what the other laws are for, and they include constitutional protections. Terrorists are not subject to US law for crimes not committed on US soil, which is why THIS law was formulated, to cover those not covered under US civil or criminal statutes.
Both sections define covered persons [1031(b) and 1032(a)(2)]. Section 1032(b) excludes citizens "under this section".
If I were a military prosecutor who chose to use Section 1031 detain a U.S. citizen under the law of war, without trial, until the "end of hostilities authorized by the Authorization for Use of Military Force" (indefinitely), 1031 would allow this.
Senator Graham said as much on the Senate floor:
“1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”
Section 1032 includes the covered persons defined in 1031, and then specifically states that US citizens are excluded, so I think your prosecutor would fail in his argument.
Senator Graham's remarks, from you link, were made regarding the Padilla case. You are going to have to explain to me how this bill, which passed the Senate just this month, can possibly apply to Jose Padilla, who was arrested in 2002, and convicted in 2008. Somehow, I suspect he was convicted under a different law.
Thank you Senator Paul - I was totally confused by Mr. McCarthy's article after I heard you on the radio talking about citizens located here in the States.
I look forward to Mr. McCarthy's response. I was bothered by his mischaracterization of Sen. Paul as a libertarian extremist. Name-calling or labeling does not a persuasive argument make. In two short pages, Sen. Paul seems to have refuted the thrust of Mr. McCarthy's discursive essay. Now I will have to re-read it.
If it is true that Mr. McCarthy was employing the red herring of non-citizens, shame on him.
