Why Is the Senate So Determined To Allow the U.S. Military To Arrest and Detain U.S. Citizens?

The law, lawyers, and the court.
Nov. 30 2011 7:02 PM

Military Police State

Why is the Senate so determined to allow the U.S. military to arrest and detain U.S. citizens?

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We don’t bring the battlefield into our backyard for any number of obvious reasons, and redefining our backyard as the battlefield for all time doesn’t make any of us safer or more free. As Sen. Mark Udall, who proposed the amendment removing these provisions from the bill, wrote Monday in the Washington Post: “These proposed changes would require the military to take on a new responsibility as police, jailors and judges—jobs for which it is not equipped and which it does not want. These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”

The underlying rationale for allowing the military such unprecedented power is the tiresome assertion that all of our current strategies against terrorism have failed. It’s almost as if the bill’s sponsors think that there have been multiple successful terrorist attacks since 9/11; that dozens of terrorists have been freed as a result of the sloppy civilian justice system; and that domestic law enforcement has failed in its efforts to combat terror. None of that is true. Congress appears determined to do away with every tactic that has identified and halted terror attacks in the past 10 years, and to enshrine into the law everything that has failed.

Those who voted against the Udall Amendment were at great pains to say that the law targets only bad terrorists, not good Americans. Sen. Lindsey Graham, R-S.C., said: "The enemy is all over the world. Here at home. And when people take up arms against the United States and [are] captured within the United States, why should we not be able to use our military and intelligence community to question that person as to what they know about enemy activity? They should not be read their Miranda rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined al Qaida and what they were going to do to all of us."

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But who decides what constitutes the “all of us” and what constitutes the “they”? That’s the very definition of due process. The detainee language only makes us all safer if you assume that “they” are always guilty whenever the government says so. It’s the job of the courts to decide whether the government is right. Justice Antonin Scalia himself put it this way: “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. … The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

One of the two Republican senators to vote for the Udall Amendment yesterday was Sen. Rand Paul, who quoted Thomas Jefferson: “The means of defense against foreign danger historically have become instruments of tyranny at home.” No. Truer. Words. At this moment in America we seem to be so fond of dividing Americans into us and them that we have created all sorts of intriguing new legal double standards for the thems. Don’t think for a minute that these new powers will be used only against suspected terrorists. We already know that suspected illegal immigrants, suspected environmental activists, and suspected protesters have very different legal rights—which is to say, far more limited rights—than anyone else. And as Benjamin Wallace Wells detailed last August, the landmark anti-terror legislation known as the Patriot Act has, in the 10 years since its passage, been used in 1,618 drug cases and 15 terrorism cases. You’d never know it from watching the GOP hopefuls joyfully demonize women, immigrants, the poor, the prisoners, OWS protesters, and union members, but at some point, them always becomes us.

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