96% of Congressmen Agree: Bad Legislation Is Easier To Craft In Secret

from the what-the-public-doesn't-know-will-probably-hurt-them dept

We recently discussed the National Defense Authorization Act currently working its way through the House and Senate. Both have passed their respective bills but some debate continues over a controversial provision which aims to extend indefinite military detention (without charge or trial) to cover US citizens, rather than just foreign terrorist suspects.

The whole "indefinite military detention" aspect of the bill is heinous enough even if it just ends up being used against foreign suspects. But the decision to declare US territory as a "war zone" in order to mobilize the military against US citizens is particularly worrisome. Due to the fact that this provision is highly controversial and yet another in a long line of post-PATRIOT Act attacks on the Bill of Rights, Congress has decided to move the discussion behind closed doors, presumably to avoid any scrutiny from the very public it wishes to foist this legislation upon. The vote wasn't even close:

With the House having voted 406-17 to "close" portions of the meetings and avoid public scrutiny, members from both chambers and both parties are meeting in a secretive conference committee to work on reconciling the differences between the House and Senate versions of the bill. On the military detention provision, their main task is going to be to find a solution that can pass both chambers (again) and not draw a veto from President Obama.

Here is the very brief list of representatives who still believe that government still has something to do with being "by the people, for the people":

Justin Amash (MI)
Earl Blumenauer (OR)
Yvette Clarke (NY)
John Conyers (MI)
Peter DeFazio (OR)
Keith Ellison (MN)
Sam Farr (CA)
Raul Grijaiva (AZ)
Michael Honda (CA)
Dennis Kucinich (OH)
Barbara Lee (CA)
John Lewis (GA)
James McDermott (WA)
John Oliver (MA)
Ron Paul (TX)
Fortney Stark (CA)
Lynn Woolsey (CA)

As depressing as it is that only 17 representatives out of the 423 voting would stand up for government openness, it's even more depressing that the threat of a veto doesn't carry much weight. The administration is not altogether opposed to this provision, as is evidenced by this Statement of Administrative Policy:

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the "AUMF"). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

Basically, the administration is expressing its "concern" and advising Congress to pass clarifying legislation in the future. Of course, the legislation the House wanted to pass will already be on the books and judging by the swift passage of both the House and Senate versions, combined with this overwhelming vote for secrecy, there's no reason to believe Congress will ever feel the urge to dial back its overreach.

In fact, the only thing the administration strongly opposes enough to deploy a veto is the provision that would mandate this power be used against all terrorist suspects besides US citizens.

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.

The adminstration wants to retain its power to detain suspected terrorists outside the context of war and the Geneva Convention protections, but (at least according to this statement) it's much less concerned about mobilizing the military against US citizens. So the controversial Section 1031 can likely remain intact, unlike the Bill of Rights. It would be the Section 1032 mandate that would need to be altered to fit the administration's desires, namely broad power over suspected foreign terrorists.

The long and the short of it is that the government wants to retain its worldwide overreach and is more than willing to extend this grasp to US citizens, provided detaining the home crowd indefinitely doesn't interfere with detaining the visiting team indefinitely. All of this is being done under the pretense of keeping the US safe. And nothing's safer for citizens than being in indefinite "protective" custody, apparently.

Filed Under: detention, national defense authorization act, secrecy, transparency