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2011-12-14

House-Senate Revise Indefinite Detention Bill in Bid to Avoid White House Veto, But Fears Remain

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The House is expected to vote today on a massive $662 billion defense bill that could usher in a radical expansion of indefinite detention under the U.S. government. A provision in the National Defense Authorization Act would authorize the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial. The measure would effectively extend the definition of what is considered the U.S. military’s battlefield to anywhere in the world, even the United States. The White House has issued a veto threat with backing from top officials, including Defense Secretary Leon Panetta, Director of National Intelligence James Clapper, and FBI Director Robert Mueller. Lawmakers are hoping several last-minute revisions will address the concerns and eliminate the veto threat, but critics warn the bill poses a major threat to basic constitutional rights. We speak to Chris Anders, the senior legislative counsel in the American Civil Liberties Union’s Washington Legislative Office. "This is putting people in prison, potentially for the rest of their lives, based on nothing more than suspicion," Anders warns. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The House is expected to vote today on a massive $662 billion defense bill that would usher in a radical expansion of indefinite detention under the U.S. government. A provision in the National Defense Authorization Act would authorize the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial. The measure would effectively extend the definition of what’s considered the U.S. military’s battlefield to anywhere in the world, including the United States.

Its authors, Democratic Senator Carl Levin of Michigan and Republican Senator John McCain of Arizona, have been campaigning for its passage in a bipartisan effort. But the White House has issued a veto threat, with backing from top officials including Defense Secretary Leon Panetta, Director of National Intelligence James Clapper, and FBI Director Robert Mueller. The measure was inserted into the defense spending bill after the Armed Services Committee quietly approved it without a single public hearing. Now lawmakers are hoping several last-minute revisions will address concerns raised by President Obama and eliminate a veto threat.

To talk more about all of this, we’re joined by Chris Anders in Washington, D.C., senior legislative counsel in the American Civil Liberties Union’s Washington Legislative Office.

Chris Anders, welcome to Democracy Now! Explain exactly what we are looking at here in this bill today.

CHRIS ANDERS: Well, this is a really big deal. And 10 years after 9/11, with the President today actually giving a big speech celebrating the withdrawal from Iraq, and with the war in Afghanistan winding down in a lot of important ways, now, of all times, Congress is about to pass legislation—it will be voted on this afternoon in the House of Representatives, as early as this evening in the Senate, and then sent to the President as early as tomorrow—that will set up an indefinite detention scheme. And this basically would—is so broad, it gives the president the authority to use the military anywhere in the world to detain, without charge or trial, suspects based on nothing more than suspicion. And it’s so broad and so sweeping that it could even implicate and result in the indefinite imprisonment of American citizens and other people in the United States itself.

AMY GOODMAN: Explain exactly what you mean. Give us an example of an American citizen, what could happen here in this country.

CHRIS ANDERS: Well, I think one of the things that’s been really helpful in this debate is the Japanese American Citizens League has come out strongly against this legislation. And one of the things that they are worried about and that they’ve drawn a direct line from is what happened during World War II, where there was an internment of Japanese Americans based on nothing more than suspicion or just, you know, plain-out, old racism, where there was that internment experience of people indefinitely detained without charge or trial. And what’s happening here, and this kind of power that would be given over to any president, not just President Obama—but this is so broadly written, it would become a permanent feature of United States law, so that 10 years, 20 years down the road, any president could still use this power to have the military pick up people and indefinitely detain them without charge or trial, potentially for years, potentially for life.

AMY GOODMAN: Who’s pushing for this? And what about the amendments that are being talked about right now? And also, what about the Udall amendment?

CHRIS ANDERS: Well, there was, on the Senate—in the Senate, there was a vote a couple weeks ago, when it was first considered there, on an amendment offered by Senator Mark Udall, and there were a couple of amendments from Senator Feinstein, that would have either taken these provisions out entirely or would have sharply limited their ability to be used. The Udall amendment failed, 38 to 60. There were 38 senators who voted for that. And the two Feinstein amendments failed 45 to 55. The good news in all that is that it shows that if the President follows through on his veto threat, his veto could be sustained, because the only way a veto can be overridden is with two-thirds of the vote.

But unfortunately, those bills—that bill had passed the Senate, had already passed the House back in May, and so what we’re facing today is a vote on the conference report. And one of the things that’s important for your viewers and listeners is that most members of Congress are still trying to struggle with figuring out what this issue is, and they really do need to hear from constituents. This is one of these things where it’s not just call your member of Congress, but this is a time where members of Congress, a lot of them are seeing this for the first time. This is another secret deal. There were—the conference met in secret, with four members of them making up this deal together. It was rubber-stamped late Monday night. For a lot of them, today is the first day they’re really looking at it, and they’re trying to figure out what to do. So this is actually the prime time, between now and about 1:00 Eastern time, to call your member of Congress on the House side, but also on the Senate side, and say, "Vote no on this bad bill."

AMY GOODMAN: Two retired Marine generals, Charles Krulak and Joseph Hoa, who worked with Human Rights First to fight the legislation, wrote a New York Times op-ed, which was entitled "Guantánamo Forever?"

CHRIS ANDERS: Yeah, and I think, you know, it’s been amazing to see basically almost every national security official, retired or current, has come out against these provisions. So it’s amazing—I have never seen—I’ve been at the ACLU 15 years, spending most of that time working on national security issues. I’ve never seen such a full force opposition from the national security establishment against legislation like this. And so—

AMY GOODMAN: Yet, Chris, supporters argue the Supreme Court already allows U.S. citizens to be considered enemy combatants, citing the 2004 Hamdi v. Rumsfeld case.

CHRIS ANDERS: Well, you know, I think that’s—it was an interesting debate on the Senate side, because it was a much more in-depth debate than I think we see on almost any other issue, because this really goes to the core of who we are as a people. I think with that Hamdi decision, one of the things, to me, that was very important, it seemed, to a lot of the justices was that Hamdi, who was a United States citizen, was picked up in Afghanistan. He was picked up in a battle, in a battle area, and at time where there was an active armed conflict going on. That’s very different from someone being picked up in the United States. It’s very different from someone being picked up in Canada or France or lots of other places. But what we’re worried about, and what there’s a lot of real reason to be concerned about, is that this legislation is drafted so broadly, and it puts it puts Congress’s stamp of approval on this kind of indefinite detention practice. It delinks it from any harm to the United States or to the 9/11 attacks, that this kind of detention without charge or trial could be extended almost anywhere. And—

AMY GOODMAN: So, Chris, you have this legislation that would deny suspected terrorists, even U.S. citizens on U.S. soil, the right to trial. It denies them the right to trial, subjects them to indefinite detention. Who is pushing for this? Who profits from this?

CHRIS ANDERS: Well, you know—well, it’s hard to figure out who profits from this. The military doesn’t want it. The Secretary of Defense has been personally lobbying Congress against this legislation. He wrote a very strong letter. The director of the CIA, General David Petraeus, has come out against it. The Director of National Intelligence, the head of the National Security Division of the Justice Department, the head of counterterrorism policy for the White House—every top official, officials that often are not on the same side with lots of Democratic members of Congress, and certainly not with the ACLU, every single one of these leaders has come out against this legislation. And now the—on the other side, it really is a group of senators who believe, in their hearts, that there—people like Lindsey Graham and John McCain—I think, unfortunately, Carl Levin—that the war—

AMY GOODMAN: Why Carl Levin?

CHRIS ANDERS: Well, I think it was—it’s his committee, it’s his bill. I think he made this deal, and I think maybe he seems to have convinced himself of it. But there is a view that we’re at war, we’re at war, and we’re at war everywhere, and that war includes the United States itself, and that American citizens are not off-limits, and nobody is off-limits in this.

But the problem here is that it’s not talking about charging and trying someone with a crime of terrorism or something like that, where people have a chance to defend themselves or the government has the obligation to prove beyond a reasonable doubt that something has—someone has committed a crime. This is putting people in prison, potentially for the rest of their lives, based on nothing more than suspicion. And we know that the government gets it wrong. The government, you know, makes mistakes. And if you have it in a criminal process, there’s a chance that that process is going to weed out—weed out mistakes. But when you put it in based on somebody’s say-so, whether it’s the president or some government bureaucrat saying, "I think this person did this or that," but not requiring proof beyond a reasonable doubt, there is a very good chance that our prisons, our military prisons, are going to start to get filled with people who have done nothing wrong but were in the wrong place at the wrong time and ended up as suspects.

AMY GOODMAN: Chris Anders, I want to thank you for being with us, of the American Civil Liberties Union.

CHRIS ANDERS: Thank you.

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