Senate Approves Indefinite Detention

If Al Qaeda needed a recruitment tool for its dwindling numbers, its operatives simply needed to video tape the Senate’s recent consideration of the National Defense Authorization Act (S. 1867). 

What should have been a serious discussion on the cost and moral authority of the President’s endless war policy stretching U.S. military tentacles around the globe morphed instead into a platform for endless harangues about American ‘traitors’ during WWII, inflamed passions about ‘terrorists’, bipartisan ravings in fear of Iran, redefining the Constitution and other war-mongering subjects.    

The grim reality is that with the country presumably on the edge of a cataclysmic deficit crisis, Senate Democrats who once might have been expected to support the Rule of Law, lined up on the side of a $690 billion appropriation for the Pentagon including $119 billion for the Iraq and Afghanistan wars with NO debate on military funding over the country’s favored People Programs or the Constitutionality of drone attacks.   

Once the House of Representatives approved the Act (HR 1540) on a 322 – 96 vote (with 90 Progressive Democrats and 6 Republicans against the Act), the legislation was referred to the Senate Armed Services Committee with legislative oversight for all things military including the Department of Defense.  Normal parliamentary procedure would have seen the Act referred to other Committees with shared authority, a series of public hearings would have been conducted with debate on amendments before a Committee vote sent the bill to the Senate floor – but that’s not how the NDAA proceeded.    

Instead, as if a Congressional approval rating of 9% doesn’t matter, the SASC’s autocratic procedure offers proof positive that the Senate not only deserves a lower approval rating but more importantly, that democracy is on a very thin thread.   

Not only did the Committee violate its own legislative procedures which protect the public’s right to know, it never issued its customary Committee report which presents the Committee’s work for public inspection – nor was the Congressional Budget Office or the Congressional Research Service able to prepare their usual summaries prior to Senate floor consideration.  Given what we know now, such a public process would have set off alarm bells raising public concern about why the Senate bill had been prepared behind closed doors and approved by the Committee in secret.     

Through legislative flim-flam, Committee Chair Carl Levin (D-Mich) and ranking minority Sen. John McCain (R-Ariz) reworded House-approved Section 1031 to allow any citizen anywhere in the world to be held in indefinite detention by military authorities without charges or trial on the ‘suspicion’ of association with terrorists.  In an on-going attack on the Constitution, the Levin-McCain rewrite offered no opportunity for legal counsel or an opportunity to prove one’s innocence.  The Senate’s transfer of all prosecutorial authority for detentions from the Department of Justice to the Defense Department assures the militarization of all domestic dissent.

Sen. Rand Paul (R-Ky) made the point that the inclusion of such language not only jeopardized Constitutional protections but implied a future of never-ending wars.  Neither Levin, McCain nor any other Senator challenged Paul’s assertion.

Sen. Lindsey Graham (R-S.C.), smooth as a snake-oil salesman who featured prominently throughout the bill’s consideration, defended S 1867 that “says in law for the first time that the Homeland is part of the battlefield” and that people can be imprisoned “American citizen or not.” 

In a shameful colloquy, Graham played the once-liberal stalwart Levin with the deftness of a Stradivarius, as Graham, who served six years as a Judge Advocate in the Air Force safely ensconced in Germany, offered the alarming assertion that the Posse Comitatus Act does not prevent a military presence from American streets in pursuit of ‘terrorists.’  The goal of the Act, adopted after the Civil War in 1876 when Northern troops were withdrawn from the South, was to prevent Federal military troops from enforcing the law of the land.  Levin, in an ominous metaphor of how liberals have emerged as pro-military, pro-war and neutral on the Rule of Law, never questioned Graham’s logic.

As a prelude to voting on a series of flimsy amendments offered by Sen. Udall (D-Co) and Feinstein (D-Cal) to clarify Section 1031 that American citizens could not be arrested, detained indefinitely or sent to Guantanamo, Sen. Paul Kirk (R-Ill) took the Senate floor and proceeded to educate the Senate on the merits of the Fourth, Fifth and Sixth Amendments to the Constitution and its ‘inalienable rights.’  For one brief, shining moment, when Kirk returned to defend himself, there was a rare face to face debate on the Senate floor with Graham and McCain sputtering and fuming at Kirk’s insolence.

The gravity of a revised House Section 1031 lies in the fact that while the President has already assumed Executive privilege with the ability to arrest and detain an American (Jose Padilla) without due process and to assassinate (Anwar al Awlaki) American citizens without charges or trial, what Levin and McCain have done is to codify illegitimate precepts like the erosion of habeas corpus and Grand Jury protections, denial of a civil trial and to permit unreasonable search and seizures into American law; further eroding a Constitutional government’s ability to operate within the Rule of Law. 

Sen. Robert Menendez (D-NJ) lost an opportunity to contribute to world peace by introducing an amendment meant to stir patriotic fervor as it sanctioned the Central Bank of Iran and any financial institution doing business with it. Independent scientists have criticized the recent IAEA report on Iran as a flawed politically-inspired document.  Menendez’ amendment which could have been adopted as a routine unanimous consent item, was brought to a roll call vote (100-0) in order to warn Iran that the US Senate ‘meant business.’   After reciting incorrect assertions with regard to Iran’s nuclear program, the mindless flag-waving threats were reminiscent of 2002 and raised the question of whether the Senate has learned anything in the last decade.

While most Democrats were content to wring their hands in pro-military  doublespeak, Sen. Paul offered a stunning amendment to de-authorize the 2002 Authorized Use of Military Force in Iraq Resolution.  Paul’s amendment would have not only truly ended the Iraq war but would have removed the government’s legal rationale to currently engage in warrantless surveillance on Americans and restore Congressional authority to make war.  Sen. Jeff Merkley (D-Ore.) spoke in support citing that the Executive ‘never wants to hand back authority’ and that “Congress has yielded its authority too often; too many times Congress failed to do its fair share in the Constitutional framework.”   Paul’s amendment lost on a 67-30 vote with 25 Democrats voting NO.

With a complicit media blackout similar to how Izvestia ‘managed’ the news, by the time of final passage, 93 – 7 (Sens. Wyden and Merkley of Oregon, Paul, Harkin of Iowa, Lee of Utah, Sanders of Vermont and Coburn of Oklahoma), it was obvious that despite being held in extreme disregard by a huge majority of Americans and with 63% against the war in Afghanistan, the U. S. Senate continues to embarrass itself and the country with no realization that the whole world is watching.  

If a total lack of esteem on the part of American taxpayers is not enough motivation to change, what will it take for Congress to recognize it has a problem and that ‘It” is the problem.

While President Obama’s warning of a veto makes good campaign rhetoric, there is little serious expectation that the Constitutional scholar in the Oval Office will follow-through.