And then, of course, there's wonderful moments like this from C-SPAN and the Senate floor:
At which point, I think there might be some valid concerns. Because the administration asked that the language excluding US citizens from the bill be removed. Also, they expressed concern that the bill unduly restricts Executive power.
And the bill, apparently (according to Senator Lindsey Graham), declares the whole world, "including the homeland," part of the battlefield.
The above refers to the portions of the bill which were passed. When it comes to what might have been...well, the Senate has officially lost it. Evidence:
"Offered to the National Defense Authorization Act for Fiscal 2012 (S.1867), amendment No. 1274 would have allowed the U.S. government to detain an American citizen indefinitely, even after they had been tried and found not guilty, until Congress declares an end to the war on terror."Sponsored by Senator Jeff Sessions of Alabama. Voted for by 41 members of the US Senate, including two Democrats, one Independent, and the rest Republicans.
Let us review the Constitution...I was sure...ah, yes. Here it is.
Amendment VMethinks the constituents of 41 US Senators need to make known, loudly and clearly, exactly what will happen next election. They all need to lose reelection--every one of the 41 Senators who voted for this amendment. If some evidence comes forward to show that Sen. Paul grossly mischaracterized the nature of the amendment, I'll take a different position.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
UPDATE: The Wall Street Journal makes that really unlikely:
...the fight was closer over an amendment proposed by Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee. The amendment focused on a scenario where an al Qaeda suspect is acquitted in a court—whether military or civil—but is still judged a terrorist threat...But otherwise, this is gross misconduct. These people are unfit for the office they hold.
"Like any other captured combatant, he can be held as long as hostilities continue...."
Mr. Paul didn’t think so, and he focused particularly on the case where the accused terrorist was an American citizen. “If the evidence does not support conviction, it would be against everything we believe in and fight for in America to still allow the government to imprison you at their whim,” he said last night in a statement.
Earlier in the week, he told the Senate, “There is one thing and one thing only protecting innocent Americans from being detained at will at the hands of a too-powerful state – our Constitution, and the checks we put on government power"...
The Sessions amendment failed on a 41-59 vote. Even so, under some interpretations of current law, the president could order the kind of preventive detention Mr. Sessions advocated.
Now, some claim there's nothing to be concerned about with Senate Bill 1867, otherwise known as the National Defense Authorization Act:
...Section 1031, which relates to the use of the armed forces to detain covered people “pursuant to the Authorization for Use of Military Force,” has a very narrow purpose of describing detention “under the law of war” of people who either participated in the terrorist attacks of Sept. 11, 2001, or is a member or “substantial supporter” of al-Qaida, the Taliban, or “associated forces that are engaged in hostilities against the United States or its coalition partners.”Hang on. Wait a minute. Isn't there some crucial middle step in this process between "war with the United States" and "indefinite detention?" Something...oh, what's the phrase...due to people? Some sort of process? Involving law?
This DOES apply to U.S. citizens, but it has already been established in plentiful detail that traitors who join forces with the enemy are subject to military law, including detention and worse.
This concern about protecting Americans who might be judged by the government to be at war with the United States seems to be misplaced, at best, and mischievous at worst. There is a virtually nil chance that you or your neighbors will be swept up off the street and locked up in “indefinite detention” unless you are indeed engaged in war against the United States.
At that point, sorry, you lose most of your civil liberties...
Article 3, Section. 3.So the people who argue there's nothing to be afraid of end up giving me cause to be, frankly, rather afraid.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Bill Number S.1867 for the 112th Congress
Authorization for Use of Military Force
Executive Office of the President, Office of Management and Budget on the bill.
The Washington Post
Senators Voting Yea on Sen. Sessions' Amendment
- Alexander (R-TN)
- Ayotte (R-NH)
- Barrasso (R-WY)
- Blunt (R-MO)
- Boozman (R-AR)
- Burr (R-NC)
- Chambliss (R-GA)
- Coats (R-IN)
- Coburn (R-OK)
- Cochran (R-MS)
- Cornyn (R-TX)
- Crapo (R-ID)
- DeMint (R-SC)
- Enzi (R-WY)
- Graham (R-SC)
- Grassley (R-IA)
- Hatch (R-UT)
- Hoeven (R-ND)
- Hutchison (R-TX)
- Inhofe (R-OK)
- Isakson (R-GA)
- Johanns (R-NE)
- Johnson (R-WI)
- Kyl (R-AZ)
- Lieberman (ID-CT)
- Lugar (R-IN)
- Manchin (D-WV)
- McConnell (R-KY)
- Moran (R-KS)
- Murkowski (R-AK)
- Portman (R-OH)
- Pryor (D-AR)
- Risch (R-ID)
- Roberts (R-KS)
- Rubio (R-FL)
- Sessions (R-AL)
- Shelby (R-AL)
- Thune (R-SD)
- Toomey (R-PA)
- Vitter (R-LA)
- Wicker (R-MS)
“The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012. The Administration appreciates the Senate Armed Services Committee’s continued support of our national defense…
While there are many areas of agreement with the Committee, the Administration would have serious concerns with provisions that would: (1) constrain the ability of the Armed Forces to carry out their missions;…
Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch’s ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government’s ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices.
Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.
The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests...
Section 1034′s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate...In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch...
Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qa’ida and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.
Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto…
Constitutional concerns: A number of the bill’s provisions raise additional constitutional concerns, such as sections 233 and 1241, which could intrude on the President’s constitutional authority to maintain the confidentiality of sensitive diplomatic communications. The Administration looks forward to working with the Congress to address these and other concerns.”