Ceding Liberty to Terror: Senate Votes Against Due-Process Rights

Asked to deny presidential authority to indefinitely detain Americans without charges or a trial, they declined, citing the threat of al-Qaeda.

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Is it lawful for the president to order any American held indefinitely as a terrorist, without formal charges, evidence presented in open court, a trial by jury, or a standard of "guilty beyond a reasonable doubt"? The U.S. Senate had a chance Wednesday to assert that no, a president does not possess that power -- that the United States Constitution guarantees due process.

Sen. Dianne Feinstein (D-Calif.) urged her colleagues to seize the opportunity. "We as a Congress are being asked, for the first time certainly since I have been in this body, to affirmatively authorize that an American citizen can be picked up and held indefinitely without being charged or tried. That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War II," she said. "What we are talking about here is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever."

Sen. Dick Durbin (D-Ill.) agreed.

"If we believe an American citizen is guilty or will be guilty of acts of terrorism, can we detain them indefinitely?" he said. "Can we ignore their constitutional rights and hold them indefinitely, without warning them of their right to remain silent, without advising them of their right to counsel, without giving them the basic protections of our Constitution? I don't believe that should be the standard."

In the end, however, Feinstein and Durbin lost the debate.

The U.S. Senate refused to affirm that American citizens arrested in the United States shouldn't be subject to indefinite military detention on the president's order. Senator Feinstein's amendment to that effect went down in defeat with 55 historic votes against it.

Here are the senators who lost, the ones who wanted to protect the rights of U.S. citizens to due process:

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For the last two years, I've been railing against President Obama's civil-liberties abuses and the Democrats and liberals who are either complicit in them, or at best ignoring his Bush-like policies. What you see above is evidence that the Democratic Party in the Senate is better on civil liberties than the Republicans, only four of whom stood with due process and "innocent until proven guilty." Kudos to Sens. Kirk, Moran, Paul, Lee and Collins for breaking with their party.

That brings us to the senators who refused to affirm that American citizens should not be held indefinitely. They were led by Republican John McCain and Democrat Carl Levin, cosponsors of the National Defense Authorization Act of 2011. Sen. Lindsay Graham, a Republican, spoke against the Feinstein amendment on the Senate floor. "It has been the law of the United States for decades that an American citizen on our soil who collaborates with the enemy has committed an act of war and will be held under the law of war, not domestic criminal law," he said. "In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair. That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaeda is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield."

That quote is important, for Graham is saying that as long as terrorists are trying to recruit  on American soil, our homeland is a battlefield. That means a perpetual state of war. Here are the senators who refuse to affirm that American citizens retain the right to due process during this war that is supposedly being waged everywhere on earth and that has no foreseeable end in sight:

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The Republicans listed ought to be condemned by "constitutional conservatives." Those are the Tea-Party-affiliated voters who, according to Yuval Levin of National Review, are "focused on restraining government" through "a system of checks to prevent sudden large mistakes while enabling gradual changes supported by a broad and longstanding consensus." These conservatives, Levin says, insist on "constitutional forms that compel self-restraint and enable self-correction" out of "the humble desire for forms that might prevent large mistakes." They are "focused on recovering the U.S. Constitution, and especially its limits on government power," because in the view of the Framers, "there is no omniscience; there is only imperfect humanity." We therefore need "checks on all of our various excesses, and a system that forces us to think through important decisions as best we can." If a bloc of voters with those attitudes in fact exists, they've now got a list of senators to challenge in the next primaries they face.

As yet, there is no hint that there will be such a rebellion.

Then there are the Democrats who broke with their party to oppose due process: Begich, Blumenthal, Inouye, Klobuchar, Landrieu, Levin, Manchin, Nelson, Pryor, Reed, Stabenow, and Whitehouse. If there is in fact a sizable progressive constituency that cares about civil liberties, will it challenge these senators?

As yet, there is no hint that there will be such a rebellion.

After Feinstein's amendment failed, the Senate quickly passed a face-saving measure on a 99 to 1 vote. It affirmed that nothing in the bill "shall be construed to affect existing authorities" about detention of U.S. citizens and resident aliens. In other words, the Senate is affirming the murky status quo, wherein presidents most certainly think they have the power to indefinitely detain, but have so far avoided a definitive, clarifying Supreme Court decision for fear they'd lose.

Many senators agree that the president is already so empowered.

In the floor debates, there was a lot of argument about what exactly Sandra Day O'Connor decided in her opinion in Hamdi v. Rumsfeld, one of the Supreme Court cases that guides detainee law. You can read the debate here -- it is a rich subject for a future item in this space.

Here I want to close by looking at an argument made by some of the senators who don't think it is lawful for the president to indefinitely detain Americans captured on U.S. soil. It requires us to step back from the amendments to the National Defense Authorization Act, and the bill itself, which passed the Senate by a depressing 93 to 7 vote with only Wyden, Paul, Coburn, Harkin, Lee, Sanders, and Merkley dissenting. We also need to step back from the Obama and Bush administrations, and the War on Terror too, until we're just citizens reading the plain text of the U.S. Constitution, which members of all three federal branches swear to uphold.

Sen. Kirk had some grounding words to say about the Constitution:

I took the time, as we all should from time to time, serving in this body, to re-read the Constitution of the United States yesterday. The Constitution says quite clearly: 'In the trial of all crimes -- no exception -- there shall be a jury, and the trial shall be held in the State where said crimes have been committed.' Clearly, the Founding Fathers were talking about a civilian court, of which the U.S. person is brought before in its jurisdiction.

They talk about treason against the United States, including war in the United States. The Constitution says it "shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

The following sentence is instructive: No person -- 'No person,' it says -- 'shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.' I would say that pretty clearly, 'open court' is likely to be civilian court.

Further, the Constitution goes on, that when a person is charged with treason, a felony, or other crime, that person shall be 'removed to the State having Jurisdiction of the Crime' -- once again contemplating civilian, state court and not the U.S. military. As everyone knows, we have amended the Constitution many times. The Fourth Amendment of the Constitution is instructive here. It says: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures' -- including, by the way, the seizure of the person -- 'shall not be violated, and no Warrants shall issue, except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Now, in section 1031(b)(2), I do not see the requirement for a civilian judge to issue a warrant. So it appears this legislation directly violates the Fourth Amendment of the Constitution with regard to those rights which are inalienable, according to the Declaration of Independence, and should be inviolate as your birthright as an American citizen.

Recall the Fifth Amendment, which says: 'No person' -- by the way, remember, 'no person'; there is not an exception here. 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment,' hear the words, 'of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War' -- meaning there is a separate jurisdiction for U.S. citizens who are in the uniformed service of the United States. But unless you are in the service of the United States, you are one of those 'no persons' who shall be answerable for a 'capital' or 'infamous crime,' except on 'indictment of a Grand Jury.'

The Sixth Amendment says: 'In all criminal prosecutions' -- not some, not by exception, in all criminal prosecutions -- 'the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed' ... I go on to these because I regard all of these rights as inherent to U.S. citizens, granted to them by their birth in the United States.
Does your senator agree with all that? If not, isn't it about time that you elected someone who does?

Image credit: Reuters
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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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