Ladies and gentlemen, a straw man

I should warn you right away that today’s post is probably a variation on what Richard Hofstadter called the paranoid style in American politics. I mean the style, not the essay. Yesterday, the White House withdrew its threat to veto S. 1867, the defense authorization bill that provides for (A) annual Pentagon funding and policy directives and (B) the indefinite military detention without trial of American citizens suspected of aiding terrorists. See, it does two things. But don’t worry—the White House has concluded that:

the language [in Sec. 1031 of the bill] does not challenge or constrain the president’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the president’s senior advisors will not recommend a veto.

Press Secretary Carney’s remarks were interrupted when a bunch of crows got scared and flew away.

For the small but vocal minority known as American citizens, the problem with S. 1867 is not that it might limit the President’s power to prosecute the war on terror. It’s that it might relieve him of the obligation to prosecute anyone at all, since Subsection B Part (1) of Section 1031 of the bill authorizes “detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.” The good news is that they can’t imprison people without trial forever—only until we’ve won the War On Terror. The bad news is that Subsection B Part (1) of Section 1031 provides for the disposition of Covered Persons, and Covered Persons include:

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. [S. 1867, Sec. 1031.(b).(1)]

“Any person” does not exclude American citizens arrested on American soil. It doesn’t matter what they are or are not arrested for doing, since the Fourth Amendment to the US Constitution insists that we use a trial to determine what they did. That’s reason enough for the constitutional law professor we elected President to veto S. 1867. Yet not only has he announced that he won’t—he has also cited the exact thing we were worried about in explaining why everything checks out. “Don’t worry,” Mom says as she pushes another brussels sprout into your mouth. “I won’t take away your vegetables.”

Shit is Orwellian. Doubly troubling is the press’s agreement that limiting the executive branch’s ability to fight terrorists was the only potential problem with S. 1867. The Hill agrees that indefinite military detention of American citizens is no big deal, calling S. 1867 a “must-pass bill” and noting that “it has passed for 50 years straight.” Other defense authorization bills have passed for 50 years straight. Other defense authorization bills did not suspend the right of habeas corpus, though. But that doesn’t even matter, as the White House makes clear in a statement way down at the bottom of the Hill article:

The administration called the provision in the bill that establishes the authority for military detentions unnecessary because the executive branch already was given this authority following Sept. 11.

So the President is not going to veto this bill giving him the power to imprison American citizens without trial because it does not constrain his power and, besides, he had it all along. That Barack Obama would speak so cynically is disappointing. That pretty much the entire American news media would play along is downright unnerving. The only difference between the Hill story and CNN’s is that CNN wraps it up with four paragraphs about the Iranian Central Bank. Even Fox News called the bill “a rare instance of bipartisanship” that “ensured President Barack Obama’s ability to prosecute terrorist suspects in the civilian justice system.”

Republican and Democrat, Congress and White House alike agree that American citizens can be imprisoned without trial. Fox News and CNN agree that we were all worried the President might not be allowed to do it. The only people who disagree are those who aren’t senators and don’t own major media corporations—the very people most likely to be terrorists. You know something is true when only the comedians are talking about it.



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  1. But what about page 428 of the NDAA where it says

    “AUTHORITIES.—Nothing in this section shall be
    construed to affect existing law or authorities, relating to
    the detention of United States citizens, lawful resident
    aliens of the United States or any other persons who are
    captured or arrested in the United States.”

    And also Feinstein today proposed what she’s calling the “The Due Process Guarantee Act of 2011” which would amend the Non-Detention Act to read:

    “An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.”

    I think it’s going to be okay. Or rather, I feel justified in the hope that it’s going to be okay.

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