Foreign Policy

The Senate's Unconstitutional Support for Indefinite Detention

The government should not be allowed to imprison people indefinitely.


Permit me to state the obvious: The government shouldn't be allowed to imprison people indefinitely without charge or trial. It shouldn't be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.

Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the U.S. Senate. Last week the Senate voted 61-37 in effect to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial—perhaps at Guantanamo—if they are merely suspected of involvement with a terrorist or related organization—and even if their suspected activity took place on U.S. soil.

The provision, which is included in the National Defense Authorization Act, was drafted without a public hearing by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.). Sen. Mark Udall (D- Colo.) sponsored an amendment to remove the power, but the amendment was defeated. A related provision requires that terrorism suspects who are not citizens be held by the military rather than being tried in a civilian criminal court. (The executive branch can waive this requirement after certifying to Congress that the waiver is a matter of national security.)

The right of habeas corpus is preserved for citizens, but this is the barest minimal protection of a suspect's rights.

The act passed last Friday (December 2) and has to be reconciled with the House version.

Undermining Criminal Justice

What we have here is a shameful move to further undermine two or more pillars of the traditional American criminal justice system (to the extent it still exists). Suspects are just that: suspects. Before being imprisoned, they are entitled to notice of the charges and a proper trial before a jury in which the government has the burden of proof.

Moreover, the United States has an old principle of law that severely restricts the military's involvement in domestic law enforcement. As Gene Healy of the Cato Institute notes, the 1887 Posse Comitatus Act sets "a high bar for the use of federal troops in a policing role. That reflects America's traditional distrust of using standing armies to enforce order at home, a distrust that's well-justified." (See Healy's Freeman article "Blurring the Civilian-Military Line.")
Some downplay the significance of the Levin-McCain provision because it merely would codify powers already exercised by Presidents Obama and George W. Bush. Perhaps. But these are powers no president should have ever possessed. So they shouldn't enshrined in law.

Udall says the provision goes further than mere codification: "[T]he secretary of defense, the directors of national intelligence and the FBI, and the White House—along with numerous defense experts—have said this would amount to a significant expansion of the military's detention authority. . . . These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil."

Regardless, make no mistake about the scope of the provision: "[T]he statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland," said Sen. Lindsey Graham (R-S.C.) in defense of the provision.

Veto Possible

The White House suggested a veto of the bill is possible because of the detainee provisions. According to a White House statement:

[A]pplying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

This could be a cover for other objections, such as restrictions on presidential power. After all, Obama has never forsworn the power to treat Americans the barbaric way José Padilla, an American citizen, was treated by the Bush administration. Indeed, Obama claims the power to execute American citizens without due process—and has done so in the case of Anwar al-Awlaki. Still, a veto is a veto.

Sen. Rand Paul (R-Ky.) made his own attempt to kill the detention section. (In this video of his Senate speech, he explains why such power is both wrong and unnecessary.) "Should we err today and remove some of the most important checks on state power in the name of fighting terrorism," Paul said, "well then the terrorists have won…. [D]etaining American citizens without a court trial is not American."

Paul also helped kill an amendment that would have permitted the indefinite detention of an American citizen accused of terrorism even after acquittal at trial.

Rep. Justin Amash (R-Mich.), called the provision "one of the most anti-liberty pieces of legislation of our lifetime."

Levin and McCain answered their critics in a Washington Post op-ed, writing, "[T]he administration has broad authority to decide who is covered by this provision and how and when such a decision is made."

Are we supposed to be comforted by unchecked presidential discretion? As I recall, the American revolution had something to do with an objection to arbitrary power.

"Essentially," writes Andrew Napolitano, "this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases."

Crime or Act of War?

Should terrorism be handled as a criminal act or an act of war? Those who know government's inherent threat to individual freedom must insist on the former, if for no other reason than that, under cover of war, government can always be counted on to assume tyrannical powers, as it has since September 11, 2001. Perpetual war—in which America itself is considered a battlefield—is hardly conducive to liberty of any kind.

"No nation could preserve its freedom in the midst of continual warfare," James Madison said.

The free market, and the free society in general, cannot be understood without also understanding their indispensable political, legal, and moral conditions. Freedom from government whim is one of those conditions, despite its inconvenience for those who lust after power.

Sheldon Richman is editor of The Freeman, where this article originally appeared.

Editor's Note: This article originally misattributed Rep. Amash's quote to Rep. Ron Paul.

NEXT: Newt Gingrich Stabs Gun Owners in the Back

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  1. Obama: GWB 2.0

    1. That implies that he’s an improvement.

      1. that implication really depends on the software inspiring the version numbering. plenty of times “2.0” is worse than the last version. Office2007 for example.

    2. I didn’t know they designated viruses that way.

    3. FTFA: “The government should not be allowed to imprison people indefinitely.”

      The government isn’t authorized to do so. They’re out of control, having flung the constitution to the winds with the collusion of conspirators in congress and the judiciary.

      The question would be (if we didn’t already know the answer, which is “nothing”): What are we going to do about it?

  2. bitch about the very same city-STATE that they use so ruthlessly to protect their phony property enTITLEments, which are nothing more than arbitrary restrictions on the free movements of people about the land.
    Officer, am I free to gambol?

    1. Rectal, you are not even trying. You do realize that the second O in OODA is Orient right? As in altering one’s direction?

      Your OODA loop appears to be infinitely long. You just do the same things over and over again. You remind me of the Nipponese army as portrayed in Cryptonomicon in that respect.

      BTW, I highly recommend Cryptonomicon to you; there’s a character named Andrew Loeb with whom you would totally identify.

      1. Don’t apply logic to the retard, tarran. Retards and logic are like oil and water.

        1. I am toying with the idea of training Rectal to amuse us.

          Before you scoff, think about what she brings to the table: monomania, a desperation for attention, a nose-tackle’s heft, rage worthy of Mr Furious.

          Right now it’s going to waste, which is sad.

          But if we could turn her, we could tap that power for our own amusement. We could rule the threads, like father and hippopotamus. What could possibly go wrong?

          1. a nose-tackle’s heft
            can my team borrow her for the bowl game? We need some bulk in the middle.

          2. Your plan is ambitious, which I like, but I agree that we must take heed that hugely fat hippos are dangerous.

      2. I never thought of that. Andrew Loeb is White Indian.

        1. Well, except that Andrew Loeb actually had the courage of his convictions.

    2. I wish so much that you would go gamboling across I-95 and get run over by an eighteen wheeler.

    3. I’m so fat I dress up as a fat guy for Halloween and I have to drop 100 lbs to fit in my costume.

    4. Yes, you are free to gambol.

      How would you like to live in the Smoky Mountains? You can survive on well water and whatever you can forage. I am sure the good people of Reason will take up a collection to find an uninhabited paradise of your choosing.

      Does that sound too luxurious? How about somewhere in the Arizona desert, or the wilds of Montana or Wyoming? Plenty of space for you to gambol to your heart’s content.

      Maybe that sounds too citified for you. How about effectively ungoverned and uninhabited spaces in Mongolia, western China, South America or Africa?

      We realize that we have been in error to discourage your gamboling. Please, let us mend our ways by dropping you in the pristine, affluent digs you desire.

      1. Ted Kasinski the unibomber gamboled and bombed for decades in Montana. There is nothing to stop our fat toad troll from doing the same.

        1. Well, it sounds like he needs some help finding his way to the middle of nowhere. I say we charter a private plane, and let him jump to a spot of his choosing. Just to show that I have truly repented, I won’t insist that he use a city-statist parachute on the way down.

      2. You forgot Somalia.

        1. Well, Somalia may not have a government, but I don’t know if it’s prime gamboling territory. You would come in contact with all sorts of tribesmen, and they even have cities. No, our friend, WI wants to be able to roam free.

    5. Gambol Lockdown would be a great name for a rock band.

    6. No, but you are free to blow me if you want to get out of this ticket.

    7. Shit, yet *another* thread ruined by Jason Fuckin’ Godesky, posting bullshit completely irrelevant to the thread subject.

      Then again, water is still wet…

  3. “[T]he statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland,”

    Looks like I’ll need to do my terrorism from the moon.

  4. That picture screams for wacky alt-text.

    “This is the penalty for losing at Bozo the Clown’s Grant Prize Game?”

    1. Damnit, “Grand”, not “Grant”.

      I’ve been misspelling a lot of shit lately. I blame John.

      1. Blame Alan, why dontcha?

        1. I do blame that insufferable shit for a lot of things that go wrong in my life. My accumulated rage is why that persona is so intellectually stunted and warped.

      2. maybe it’s a toomah.

        1. It’s not a toomah!


    Have a Balko kick in the nuts to go with this. What is even more depressing are the comments. It is not that the liberals don’t find this disturbing. They do to their credit. It is that they have no intellectual tools to figure out how they or their team is in anyway to blame for it. They can only scream “evil right” and “corporations” at any problem. And thus there is little hope they will ever be of any help solving the problem.

    1. Which is, of course, a major reason things just keep getting worse. Even if you’re on a team, call them out for their errors and wrongdoing, or you’ll keep getting more of it.

      1. Being united against the other team, and not showing weakness by condeming your own team is a halmark of partisanship.

    2. Dig what the HuffPoster “researcher” has to say:…..65031.html

      Looks like HuffPo has their own versions of Jason Godesky.

      1. Or this one:…..63068.html

        The stoopid is strong at the Huff.

  6. this uncomplicated principle, which is within the understanding of a child

    You just don’t understand. It’s complicated. Now run along; maybe a rerun of Mad Men is on.

  7. “But WE might need this one of these days. The SPLC told me so.”

  8. Epic fail Reason. Do some research for once. The bill specifically exempts US citizens and legal resident.

    Sec 1032

    (b) Applicability to United States Citizens and Lawful Resident Aliens-

    (1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

    (2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

    1. As if the powers that be obey the law.

      Dispite that language many Senators claim otherwise.

      1. “Despite that language many Senators claim otherwise.”

        That goes to show you what kind of people we elect.

        1. Which says more about the citizenry, than them.

          1. Ain’t that the truth..

    2. The requirement does not exist. So they’re not required to do it. Does the bill authorize detention if not required?

      1. This. I think “requirement” is the key here.

    3. if the provisions you cite are accurate, then once again we have folks voting on a bill without reading it. Every news account speaks to the measure allowing for the detention of American citizens and not a single Senator, proponent or opponent, has come forth to say that is not the case.

      I’m no lawyer but maybe the word “requirement” is what becomes the workaround — No, we were not required to detain you; we just thought it would be a good idea.

      1. This is exactly what McCain was implying. He was saying we aren’t required to use it on American Citizens but we can.

        1. and because he’s a pol, we should believe he and his colleagues will give the state power that will NOT be used? come on.

    4. oh it applies to citizens if i say so bitches !

    5. From the requirement to detain, maybe. Show us where it exempts them from the power altogether.

    6. “Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.”…..fine-being

      1. and there you have it.

      2. PWNED

      3. Try reading the actual legislation next time so you don’t look like such an idiot.

        Section 1301

        (e) 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.

        1. So, they don’t lose any power or authority? I don’t think that was the concern.

    7. I was surprised this slipped through too. I was aware of these exemptions myself last week. Bit shoddy writing an article without at least having read the bill first. Most of our congress critters will vote on it without reading it, but I do expect better from Reason.

      Actually I expect better from my dog than I get from congress, and generally get it.

      1. Wasn’t shoddy at all. You would never use language like that unless you are trying to obfuscate what they were doing.

        1. Assign ‘you’ to the ‘they’. Damn multitasking.

    8. The “requirement” at issue is this:

      (a) Custody Pending Disposition Under Law of War-
      (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.
      (2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined–
      (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
      (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

      So, the requirement is that the military hold them. If the “requirement” does not extend to a certain class of persons, I would say that might just leave it as an option. Its certainly ambiguous, and I think we know what that means.

    9. …for now, Ice. Never put anything past those thieving, sneaky, liberty-hating bastards known as “the current administration” (also, ahead of time, “the next administration”).

  9. In sort-of-related news:

    Snail Mail insists things are still moving too fast, must slow down or risk losing even more money…..-mail.html

    OECD to world: Social Contract not worth paper its printed on – when in doubt, kill rich people…..-oecd.html

    The United States has the fourth-highest inequality level in the OECD, after Chile, Mexico and Turkey

    I note that this article, much like many others on the same topic, seems perfectly comfortable bemoaning relative wealth (*i.e. “too many rich people”) while saying nothing about the absolute wealth of the ‘lower classes’ across countries. How much richer are our poorest vs. those in say, Mexico? Not important! Its all about how broad the *spectrum* is! Inequal! Same good! Different bad!

    Basically, if you have too many rich people, you are a bad country. By this measure, Sudan is the most economically *fair* nation on earth. Everyone is equally fucked.

    1. These people running the post office are fucking retarded. They’d probably bitch about ATM machines making things too tough for the bank employees as well.

      1. Postal workers = unionized.
        Bank tellers = not unionized.

        Cartels and their rackets. So wacky.

  10. Epic fail Reason.

    We all know the President of the United States is Emperor of the Known Universe, not bound by the laws of man. It’s right there in the Constitution.

    1. Is that the same part which charges the Vice President with protecting the space-time continuum?

      1. The Veep is the holder of the TimeCube, and uses its powers only for good.

        1. OOPS.

          Biden just dropped the TimeCube.

      2. space-time AND the interwebz since gore

      3. The Constitution is not a free pass for SEC fans to mess with the space-time continuum by continually replaying LSU vs. Alabama to see who is number one.

        1. “we are endowed with certain inalienable rights, among them the rights to life, liberty, the pursuit of happiness, and the govt-like efficiency of the BCS.” I am quite sure that was the original intent. Jefferson had high hopes for UVA; how was he supposed to know the ACC would be a basketball conference?

  11. How about this?

    If we want to unilaterally give our President unlimited powers to seize (or assassinate) any foreign citizen anywhere on earth, we should include a clause which provides for turning him over to an international war crimes tribunal if evidence is presented that the person in question was innocent.

    That seems fair.

    1. dont be cheatin on me mofo. im the ONLY clause you should need or want.

    2. I think we should consider altering the criminal code so that anybody who kills a president gets a $25 monthly pension for life.

      How lightly would they rule knowing that that their lives were worth less than a $7,000 single premium annuity?

  12. Even if the intent is that it not apply to US citizens on US territory, the language that it “is not a requirement that” is not equivalent to “it is probibited that”.

    If this goes into law, I am willing to bet that it is applied to a US citizen on US soil within a decade.

    1. Come on, it’s not like they would use the P.A.T.R.I.O.T. act for law enforcement against non-terrorist.

      The American public’s attention span is not great. Do small changes over time, and they will never notice the authority rise with their blessings.

  13. Another threadjack:

    Edward Jay Epstein, in the NY Review of Books, with some highly interesting evidence in the DSK case. You know the hotel DSK was staying at? It was a French hotel, and the head of security knew President Sarkozy (DSK’s political opponent). The initial investigation was done by them. A security guy in America probably called Paris HQ at a time when the head of security (perhaps the recipient of the call) was hanging out with Sark. And so forth.

    1. After hotel security interviews the maid, “the footage from the two surveillance cameras shows [hotel engineer Brian] Yearwood and an unidentified man walking from the security office to an adjacent area. This is the same unidentified man who had accompanied Diallo to the security office at 12:52 PM. There, the two men high-five each other, clap their hands, and do what looks like an extraordinary *dance of celebration that lasts for three minutes.*”

      Because it’s a French custom to celebrate and dance when finding that a horrible crime took place at your respectable business establishment.

      1. DSK somehow left his Blackberry at the hotel, and it was disabled (as if by an expert) shortly after he departed.

        DSK had wanted the Blackberry checked once he got back to Paris – he worried it had been hacked.

        There’s some weird French stuff going on here and I don’t pretend to get it.

  14. Meet Silvie – a crazy, lanky, fun girl from Prague who lives life to the maximum.

    Silvie is the ultimate free-spirit and not one to follow the rules! For example, you may have noticed Silvie prefers a more natural look. She tells us that she loves her bush, and says it makes her feel like a lioness; raw and animalistic. Silvie’s lifestyle reflects her unconventional personality, not only is she bisexual she is also a naturist.

    She has a typical fashion models body: long skinny arms, long legs and a petite structure but she still has a full bust and curves – which is very rare, a rare gem you could say. All blessings from her mother apparently!

    Nothing is taboo when it comes to Silvie!

    1. When can I czeck her out?

        1. Kinda overdone and plasticky, but I’d let any one of them make my breakfast.

  15. reminds me of homefront. only its US soldiers putting people on a bus never to be seen again instead of north koreans.

  16. I think part of the problem is the view (incorrect, but widely held) that only criminals exercise their rights, and only do it to stymie the efforts of The Good Guys.

    Cop shows do this over and over again, where the suspect is complete scum, and justice is prevented from being done by the suspect demanding his “rights”, which in the cop show, is short-hand for “guilty as sin”, and the cops always prove the guy guilty in the end. Whereas the same shows depict innocent people cooperating as the cops trample their civil rights and liking it, even thanking the cops afterward.

    Is it any wonder that the average citizen elects people who have no problems with indefinite punishment without trial simply on an accusation?

  17. Jose Padilla deserved it!

    What is wrong with the income gap? It is like saying tomato’s are getting redder-so what!

    Are any of you snowflakes worried about being picked up in country by the military?

  18. Somebody please correct me if I’m wrong here, but from the pieces of the legislation being quoted, I’m having a hard time understanding how this is saying other than that prisoners of war can be held for the duration. That hardly seems like its a novel extension of state power. Again, maybe I’m missing something. But, if I’m not, I have a hard time putting this very high up on my list of infringements on liberty.

  19. When everybody can vote, everybody loses.

  20. Has anyone commenting on here actually read the bill, instrad of just believing what someone else has written? Mr. Richman have you actually read the bill?

    First Red Flag, this is human Rights Watch we’re talking about, not the most unbiased of sources, especially when it comes to the US. Secondly, Forgiern Nationals are not convered under the Constitution as these rights are reserved for CITIZENS.

    Section 1031, Subsection [b]
    (1) UNITED STATES CITIZENS.?The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

    Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. Ben Franklin

    Investigate and actually read things before commenting from a point of ignorance.

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