Civil Liberties

Is the President's Indefinite Detention Power Limited to Foreigners?


Today (as Lucy Steigerwald noted) the Senate rejected an amendment to the 2012 defense authorization bill that would have removed a controversial provision authorizing indefinite military detention of terrorism suspects. Meanwhile, some conservatives are claiming there is no cause for alarm, a position to which National Journal lends credence by saying the provision "wouldn't apply to American citizens." Not so, says Rep. Justin Amash (R-Mich.), who calls it "one of the most anti-liberty pieces of legislation of our lifetime":

Although the bill says "the requirement to detain a person in military custody under this section does not extend to citizens of the United States," Amash said the language is "carefully crafted to mislead the public."

"Note that it does not preclude U.S. citizens from being detained indefinitely, without charge or trial, it simply makes such detention discretionary," he wrote.

Comments by supporters of the bill confirm that it applies to people arrested on U.S. soil, including American citizens. According to Sen. Lindsey Graham (R-S.C.), the bill will "basically say in law for the first time that the homeland is part of the battlefield" and that someone suspected of ties to Al Qaeda can be locked up without trial whether he is an "American citizen or not." (In September, Graham took a similarly broad view of the president's assassination powers, saying "restricting the definition of the battlefield" or "restricting the definition of the enemy" would be reckless because "this is a worldwide conflict without borders.") Sen. Kelly Ayotte (R-N.H.) likewise said the bill is necessary because "America is part of the battlefield." Defending the detention provision in The Washington Post yesterday, its co-authors, Sens. Carl Levin (D-Mich) and John McCain (R-Ariz.), did not claim the president's authority would be limited to foreign nationals or people captured in other countries. Responding to them in today's Washington Post, Sen. Mark Udall (D-Colo.), who sponsored the unsuccessful amendment aimed at removing the detention language from the bill, warns:

The provisions would require the military to dedicate a significant number of personnel to capturing and holding terrorism suspects — in some cases indefinitely — even those apprehended on U.S. soil. And they authorize the military to do so regardless of an accused terrorist's citizenship, even if he or she is an American captured in a U.S. city.

Last May the House approved its version of the defense authorization bill, which includes language defining the entire world as the battlefield in the war against Al Qaeda and requiring military detention of "foreign terrorists." President Obama has threatened to veto the bill if the final version includes restrictions on his discretion to treat terrorism suspects either as criminal defendants or as prisoners of war.

Update: Here is the roll call for the vote on Udall's amendment.

NEXT: Check Out Sen. Rand Paul Railing Against the War on Terror's Excesses and the Potential Detainment of American Citizens

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  1. According to Sen. Lindsey Graham (R-S.C.), the bill will “basically say in law for the first time that the homeland is part of the battlefield”

    …and he thinks this is a good thing? So much for “fighting the terrorists there so we don’t have to fight them here” I guess.

    1. And because I feel I can trust Lindsey Graham.

  2. I just can’t get over that Graham quote. In anything resembling a sane political environment, that would be considered a gaffe, and he would be the one getting the “crazy old man” treatment that Ron Paul gets.

    1. Am I the only one who gets creeped out when a politician refers to America as “the homeland”?

      1. Nope.

      2. And I bet that American Indians get pretty choked about it, too.

        1. Oh, it’s not hard to get Jason Godesky upset, Arensen… just tell him he doesn’t have the freedom to shit in your living room, and watch him cut/paste entire internets over it!

      3. Definitely not. I hate the word.

        1. Walkin tall, machine gun man,
          They spit on me in my _________,

          1. Hey, if he sung happy tunes, he wouldn’t be the Man in the Box.

      4. Nein, steige ich aus, wenn ein Politiker in Amerika als “die Heimat” auch creeped.

      5. Homeland was a great grocery chain; I’m sorry it closed.

  3. This’ll put Zappa’s Central Scrutinizer plum out of business. Who needs one when the President can enforce all the laws that haven’t been passed yet by saying “terrorist” three times and crossing his heart?

    1. But the white zone is for loading and unloading only, right?

      1. Welcome to the First Church of Appliantology.

    2. Biggy Smalls, Biggy Smalls, Biggy Smalls.

  4. It can happen here. It is.

  5. Agree Tulpa. and where is the actual vote? I want to see the rollcall

    1. 61-37.
      44 Republicans for, 2 against (Rand Paul and Mark Kirk).
      17 Democrats for, 35 against.

      1. I guess that should all be reversed, since the resolution was to strike down the language, but you get the drift.

        1. Sad that Team Blue showed more guts on this one than Team Red, the ostensible party of “small government”.

          1. Don’t you know we’re at war? Infinite military-police state and shooting illegals are the two primary roles of government. Duh.

            1. Oh of course, how silly of me.

              GOP: “We’re for small government! *cough*exceptwhenwe’reatwarwhichisallthetimewithterroristsanddrugs*cough*

      2. Good for the Democrats (and what are apparently the only two Republicans worth a shit in the Senate).

        1. I’m reading Mark Kirk’s Wikipedia article, and becoming less and less convinced that he’s worth a shit.

          He voted for cap & trade and wants to discriminate against people from Muslim countries on immigration.

  6. I think most of the posters here would agree that, regardless of the professed intention, the provision will be used against American Citizens* on US soil. The only question is: How long will it take?

    *And why in hell is it OK to use it on foreigners and not Americans, anyways? I am not talking about constitutional finesses on why foreigners don’t have human rights, I am talking about “man is endowed…with inalienable rights.”

    1. That’s the Declaration of Independence, which has as much legal standing in the US as The Silmarillon.

      1. Damnit, I was planning to use the Morgoth defense in my trial next week. Fuck!

      2. I was talking about the spirit of American Liberty, not the letter of the law.

        And I guess the “Spirit of American Liberty” is the appropriate term, since it appears dead.

        1. The ghost of America past.

        2. A mere bit of undigested potatoe.

          1. +1 for the Dickens’ Christmas Carol reference.

            1. +3.14 for the J. Danforth Quayle reference.

      3. That’s the Declaration of Independence

        Which is entirely correct, but it is also the basis of the fundamental rights at the heart of the Constitution.

        Aresen brings up a very good point. The Constitution is a contract that states that the Federal Government may not infringe upon those rights. If rights are fundamental and inalienable for some, are they not fundamental and inalienable for all?

        For example, a North Korean is born with these inalienable rights which his government instantly infringes upon. Why is it OK for the USA to infringe upon them as well?

        … Hobbit

        1. Well, you see, it’s a very important distinction. Without it, our Dear Leaders wouldn’t be able to bomb the shit out of flavors of the week in the Middle East. And they like doing that.

        2. There are no fundamental rights mentioned in the Constitution.

          You’re thinking of the BoR which mentions rights, some for “the people” (assembly/petition part of 1st, 2nd, 4th, 9th, 10th), others for “persons” (5th) and others with the holders unspecified. Arguably the rights “of the people” are only held by those who are part of the American people, ie citizens.

          1. And you’re thinking that such rights are “granted” by the Constitution. Other way around. You have the rights, they “promise” not to stomp on them.

            … Hobbit

    2. Because foreigners aren’t people. They are…”The Other.” They possess neither natural rights nor legal standing in the People’s Republic of America.

    3. I’ve been making that point for years, that there is no distinction to be made in how the government deals with individuals as a function of their nationality (as contrasted with foreign armies). All individuals have the same rights when dealing with the government; wasn’t that the whole idea in the first place?

      1. Foreign nationals in the US are not part of “the people”.

        And the actions of the US government outside US jurisdiction don’t fall under the Bill of Rights.

        1. Foreign nationals in the US are not part of “the people”.

          Then “We the People” is no one at all, because everyone was a foreign national prior to the establishment of the modern United States government.

          Citizenship as a concept predates the Constitution by thousands of years; the word “citizen” itself by hundreds. Why would the writers chose “people” over “citizens” when they meant the latter and not the former?

          And the actions of the US government outside US jurisdiction don’t fall under the Bill of Rights.

          That’s probably because the authority of the U.S. government to act outside of its jurisdiction does not exist within the Constitution itself. The Bill of Rights need not stop the government from doing something it was never permitted to do in the first place.

  7. Rep. Justin Amash (R-Mich.), who calls it “one of the most anti-liberty pieces of legislation of our lifetime”

    Yeah, this one might take the Patriot Act’s cake. R.I.P. habeas corpus…It’s sad that citizen-assassin Obama’s our only hope in its preservation at this point.

    1. “”Yeah, this one might take the Patriot Act’s cake. R.I.P. habeas corpus…””

      Normally I would disagree. Regardless of what has passed, it is usually available for constitutional challange. However, this if passed, may change that by making it outside of SCOTUS perview.

      Hard to tell.

      1. “Habeas corpus”? So, we’re all invoking that shariah law stuff now, huh? I knew it.

    2. I’d still go with the PATRIOT Act. At least with this law, the abuse is limited to the President, and those abuses are more or less out in the open. The PATRIOT Act can be abused by any law enforcement agency and in secret.

      1. True, both are abysmal violations of Constitutional due process. But removing habeas corpus is but one small step away from legislation enabling the government to execute citizens without a trial (life imprisonment accomplishes the same basic effect). Sadly, it’s not without precedent (see also: Japanese internment during WWII).

        1. See also: Abraham Lincoln

          1. Government, limit thyself!

  8. Ha ha! We win!

    1. May we please get off your lawn?

    2. Yup, you did. But the mercan sheeple helped.

  9. OBL 2 – USA 1

  10. So the only Rs to vote for the amendment were Paul and Kirk.

    Which means it was 35-17 for among the Dems and 44-2 against among the GOP.

    1. Flip the GOP’s numbers (2-44 in favor of removing the language), but yeah.

      1. I was counting for/against the amendment, which strucked down the language.

        1. Ahh – I see the hidden “for/against” now.

  11. Update: Here is the roll call for the vote on Udall’s amendment.

    Alaska: Begich (D-AK), Not Voting Murkowski (R-AK), Not Voting

    What the hell is going on with Alaska? Polar bear raping party?

    1. Uh.

      There was a little “isolated incident” when their plane was in Canadian airspace en route from Anchorage to Washington.

      Sorry about that.

      1. No worries. You can keep them.

  12. Well, it did me no good whatsoever, but I feel slightly better. I just sent a message to my Senator, sigh, Carl Levin. I said:

    I am horrified and saddened that you have sponsored a piece of legislation that, despite your disclaimers, will permit the President to detain American citizens on US soil without a trial and with no end date. Senator Mark Udall, hardly a terrorist sympathizer said yesterday:

    ‘The provisions would require the military to dedicate a significant number of personnel to capturing and holding terrorism suspects ? in some cases indefinitely ? even those apprehended on U.S. soil. And they authorize the military to do so regardless of an accused terrorist’s citizenship, even if he or she is an American captured in a U.S. city.’

    For someone supposedly sworn to uphold our constitution, and a Democrat theoretically interested in preserving our democracy to sponsor this bill is extremely disappointing, and hoping to depend on the good will of future presidents not to misuse this power is a dangerous fantasy.

    1. Let us know if he (or one of his lackeys) replies.

      1. Thank you for your letter. The Senator is always interested in the thoughts and opinions of his constituents and takes them very seriously when deciding how to vote. Your opinion is valued and we thank you for your interest.

        Sincerely yours,
        Peter Flakstaffer
        Aide to the Senator

        1. Yup, that’s about all I ever get too.

          Although in all fairness, I actually did get a reply from a state legislator that indicated that at least someone had read what I had written. Once.

          1. I interned for a state lege in 1999. My job was to write those letters/field phone calls from Y2Kers in the district. I learned how to politely say “thank you for wriring us about your paranoid ideations. The legislator sympathizes but the evil conspiracy has tied his hands. We suggest you keep 2 weeks cash, water and food on hand if you are concerned. “

        2. Shouldn’t that read “Peter Schvantzfluffer” or something?

  13. What the hell is going on with Alaska? Polar bear raping party?

    Those two are probably playing “doctor” in the Senate Cloakroom. They are a coupla’ handsome Senators, dontcha’ know!

  14. A “Crossing the Rubicon” and “Reichstag fire” moment if there ever was one.

    America has been a disguised corporate/financial/militarist Empire for quite some time now, but this act by the actors of the Empire is the “Fonzi jumps the shark” ending for the series, “Happy Days in anything approaching a democratic Republic”.

    And when the Empire turns inward on the homeland then the painful truth of Hannah Arendt’s prescient warning about all Empires starts to really sink-in, with the arrival of the tow-truck with the wire rope noose on your own block.

    “Empire abroad entails tyranny at home.”

    Best luck and love to Occupy Empire.

    Liberty, democracy, justice, and equality

    Alan MacDonald

    1. You’re totally right, but you need more brackets and capitalized words to adequately convey how right you are.

      1. Do NOT provoke the Herc!

  15. Speaking of locking people up for life without a trial, Norway is showing the World how kind it is by locking up Anders Behring Breivik for life without a trial.

    Anders Behring Breivik, the 32-year-old Norwegian charged with murdering 77 persons in July, told police he was “offended” by two court-appointed psychiatrists’ conclusion that he’s insane. Breivik claims he is sane and capable of standing trial for his crimes.

    Norwegian Broadcasting (NRK) reported that Breivik was transported from his cell at the high-security Ila Prison in to the main police station at Gr?nland in Oslo Tuesday afternoon. Once there, he was told by his defense attorneys that the psychiatrists believe he is psychotic and long has suffered from paranoid schizophrenia.

    That means he can’t be punished with a prison term for bombing Norway’s government headquarters on July 22 and then carrying out a massacre on the island of Ut?ya. He’s likely to instead be committed to a psychiatric institution, probably for life.…..ity-claim/

    I oppose the indefinite detention of both psych patients and terrorist suspects. Unfortunately, the average person would have no problem with Gitmo if we just called it a hospital and said the detention was treatment.

    1. Uh, this happens in the US too if a person is judged incompetent to stand trial. Jared Lee Loughner is being held without trial now.

    2. Quite right, Tulpa. I thought of Anders Behring Breivik, because it was in this week’s news across the pond.

      1. Yeah, and Loughner SHOULD get a trial… then, sent straight to the electric chair or some similar device.

    3. There will still be a trial, though. Supposedly, this won’t affect much:

      She later told the BBC that the trial would be unaffected by the diagnosis of paranoid schizophrenia: the only difference was that the prosecution could not ask the judge for a jail sentence.

      “It will go as a normal trial as if he had been sane. We will ask him questions and the defence will ask him questions and the judge will ask him questions and he will have his time to talk,” she said.

      A Scandanavian friend says that this is correct, it will only affect the penalty.

  16. Sad that Team Blue showed more guts on this one than Team Red, the ostensible party of “small government”.

    Bullshit, Jim. It was hardly a principled vote. Moreso a contrarian vote: Remember, both TEAM RED AND TEAM BLUE have the common goal of expanding the encompassing, encroaching, ever engorging federal government.

    1. I think the point is that the Democrats are in power in the Senate, yet they voted on the side of not growing government (as they tend to do on defense). Even if that’s contrarianism, I’ll take it. Their unprincipled opposition combined with Obama’s veto is enough to preserve habeas corpus.

      1. ^^Precisely. I guess I shouldn’t have used the word “guts”, but my feeling is, I’ll take a vote I like regardless of the reason it’s being cast (i.e. just to thwart TEAM RED in this instance).

  17. The ghost of America past.

    Is this vote the ghost of America future?

    1. Yes. And Robert Reich is Tiny Tim.

    2. Sadly, it may be.

      1. I don’t see a Bob Cratchit in this story, Tulpa… not sure if – oh, wait, do you mean Tiny Tim the ukelele guy?

  18. Both my senators voted nay. They love America and hate terrorists (or anyone accused of being terrorists or considered worth detaining or hiding away) THAT much.

  19. Kelly Ayotte…another argument against electing former prosecutors to higher office.

    1. Kelly Ayotte…another argument against electing former prosecutors to higher office.

      Indeed. She is a miserable piece of shit.

      1. Don’t forget Lisa Riniker.

  20. I’ll take a vote I like regardless of the reason it’s being cast (i.e. just to thwart TEAM RED in this instance).

    Fair enough; I guess I still have just a smidgeon of idealism left to expect a least an iota of honesty from these clowns.

    1. I still have just a smidgeon of idealism left to expect a least an iota of honesty from these clowns.

      I like you too much to copy and paste “HA” 20 or so times. Suffice to say, I have no such illusions.

  21. What’s good in war is good in peace, and we’re always at war.

  22. A mere bit of undigested potatoe.

    I told you to lay off the starches, Tulpy Poo. Also, rectoinversional is not the proper way to eat them, even with chunky Jif.

  23. Yes. And Robert Reich is Tiny Tim.

    I thought Dennis Kucinich was cast in that role. In light of Rep. Giffords’ disability, she may adequately fit the bill as well.

  24. Unless a great deal of representatives flip, it looks like the House would have the 2/3rds to override this mythical presidential veto. The Senate, apparently not.

  25. If only we could elect a President we knew would veto shit like this….

    1. Staving off the inevitable, squish. Hate to say it, but we’re pretty much just postponing the doom at this point.

  26. Pretty soon Americans will be playing soccer in the streets just like those damn commies.

  27. Thats jsut downright scary when you think about it dude.

  28. This bill is unconstitutional on its face, and every senator who voted for it either knows that, or should have known it. To hell with them.


    1. Just like they all thought McCain Feingold would get overturned by SCOTUS (as did Bush when he signed it).

      1. That was, indeed, a retard gamble.

    2. We are at war (ha ha!) and this is Congress suspending Habeas Corpus. Probably not the way anyone saw it coming, but likely to pass SCOTUS muster.

      1. I’ve been saying for years now, that it’s a 50/50 gamble as to which Team will be in charge when the shithammer of martial law falls on our noggins.

        This is just one more step.

        1. Agreed. Both Parties are political elites that now oppose liberty and freedom and rights for Americans.

    3. /sarcasm

      Es ist notwendig, um das Vaterland zu sch?tzen notwendig.


  29. If this passes, the political class will have declared war on the People. We will have no moral requirement to support this government.

  30. how the hell does something like this hold up in SCOTUS? Even non citizens are allowed habius rights.

  31. Silly hu-mons with your silly hu-mon rights. How is a government to function if you don’t obey?

  32. How dare you impugn our social worker soldiers who fight the terrorist on our behalf and build girl schools for orphans in Afghanistan. If action must be taken by our brave soldiers to kill the American people in part or as a whole, it will only occur because the American people deserve it.

  33. Isn’t there a flight recording of John McCain saying, ‘burn you little gooks. You look like you’re all starving to death anyway.’ Can anyone confirm this? I would hate to be spreading this accusation if it isn’t true. Would just hate it.

  34. Of course, the American people are so fucked in their collective head that if McCain repeated the Lord’s Prayer every time he dropped napalm on a kid they would make it all quite acceptable.

  35. This puts both the OWS and Tea Party at risk as being terrorists because they are both opposed to the status quo government.

  36. Sieg Heil!

    Y’all better start standing up for your rights now, because pretty soon, it won’t be allowed. They aren’t boldly taking our rights all away at once. It is being done in small, politically obfuscated pieces. Now, you can be jailed indefinitely without a trial if they decide to call you a terrorist. Take a look at the Patriot Act, for one, and you will begin to realize how easy it now is for you to disappear forever with those you leave behind having pretty much no recourse.

  37. I call bullshit.

    What provision is he actually talking about?

    S.1031 and 1032 are the ones about detention, and neither of them say that. THey do say (1032) that non-citizens who are captured must be held *until disposed*; and the “disposition” can involve… tribunal or civil trial, as well as retention until the end of the war.

    Retention until the war ends? Sounds Horrible!

    Except that’s what the Third Geneva Convention says you DO with prisoners, unless they’re grievously wounded or you work out an optional, voluntary repatriation or exchange.

    I thought we were supposed to obey those “Laws of War”? Except when it’s convenient for political posturing at home, I guess?

    (Also, I’m calling out Reason’s extra-bad reporting on this. Looking through the link-spew at the head of this? Links to “so and so says it’s bad”, repeated as if it’s fact.

    Know what REAL REPORTING is, Reason?

    It’s where someone spends ten minutes reading the relevant parts of the bill and seeing if the posturing jackasses are right.

    Turns out, if you read S.1867, S. 1031 and 1032, it DOESN’T say what the jackasses claim.

    Turns out that indefinite detention is not required [though it’s an option, as per the Laws of War], and American citizens [and resident aliens] are not only not included, but are EXPLICITLY excluded.

    Now I remember why I let my print subscription lapse; I can get stupid hysterical reporting for free on Facebook, without paying for it to be mailed to me.

    This crap? This is MSNBC-level reporting.)

  38. Anyone breaking the law or conspiring to break the law within the US is subject to the scrutiny of law enforcement which may include the FBI, Secret Service, ATF, DEA, or any of a number of agencies domestically assigned the task of protecting us from
    these monsters. Declaring the continental US as a battle zone, allowing military retentions of US citizens without miranda and the constitutional protections that make us a free society is overstepping in a huge way.

    We are fighting for our way of life, our constitution. Let’s keep our eye on the prize. Limiting the constitutional rights of US citizens for the sake of safety is taking away the very thing we are fighting for, our way of life.

    “Those who would sacrifice freedom for safety will have none and deserve neither.” Ben Franklin

    If we need to create a realtime interface between the military, and domestic agencies to track suspected terrorists let’s find a way to implement this. But we cannot turn our country into a military free fire zone with terrorists.

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