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?

Rand Paul
Sen. Rand Paul was one of two Republicans who voted to remove the military's power to detain U.S. citizens suspected of terrorism

Photo by Tom Pennington/Getty Images

On Tuesday 60 members of the United States Senate voted to preserve a provision in the National Defense Authorization Act—that would be the bill that funds the Pentagon—allowing the U.S. military to pick up and detain, without charges or trial, anyone suspected of terrorism, including American citizens, and to restrict transfers of prisoners out of Guantanamo Bay. Specifically, 60 senators voted against an amendment that would have invalidated the part of the bill which empowers the president and the military to detain anyone they suspect was involved in the 9/11 attacks or supports al-Qaida, the Taliban, or “associated forces that are engaged in hostilities against the United States or its coalition partners.”

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

There are two disputed sections of the bill, as Charlie Savage explains. One “would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.” The second provision “would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens.”

So forget the presumption of innocence. Forget the protections of the Constitution. If you are suspected of terrorism, you may be held indefinitely, maybe even shipped off to Guantanamo. And in this war that will last forever and play out on every square inch of the planet, the chances that these new powers will ever be rolled back are negligible. Even long after the war on terror has waned.

Now, perhaps you suspect these thorny questions about the handling of terrorists are best left to the experts, and that the Senate was simply listening to them. Such suspicions would be unfounded. The secretary of defense, the director of national intelligence, the director of the FBI, the CIA director, and the head of the Justice Department’s national security division have all said that the indefinite detention provisions in the bill are a bad idea. And the White House continues to say that the president will veto the bill if the detainee provisions are not removed. It sees the proposed language as limiting its flexibility.

There may be no good outcome here. It could be an unholy victory for both the prospect of unbridled executive power and for the collapse of any meaningful separation between domestic law enforcement and military authority. The law manages to expand the role of the military in domestic terror prosecutions and also limit the authority of the civilian justice system to thwart terrorism. These were legal principles to which even the Bush administration said they adhered.

As Adam Serwer explains: This new legislation will “overturn a precedent that was followed almost without exception by the Bush administration: Domestic terrorism arrests are the province of law enforcement, not the military.” Raha Wala of Human Rights First notes that “authorizing the military to detain terror suspects apprehended within the United States clearly goes against the spirit of the Posse Comitatus Act, a law that has prevented the military from taking on domestic law enforcement functions since the Civil War.” If you think the blurring of domestic policing and military authority is an Orwellian fantasy, you may want to consider the treatment of Occupy Wall Street protestors in recent weeks, or Mayor Michael Bloomberg’s claim that “I have my own army in the NYPD, which is the seventh biggest army in the world.”

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."

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.