The Senate Punted on Terror Law Detainees—and That's a Good Thing

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Congress's decision to avoid a decision on terror detainees shows how gridlock can sometimes work in the public's best interests


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My Atlantic Colleague Conor Friedersdorf has a strong piece out today focusing on the latest machinations in the Senate on the topic of terror law detainees. While I agree with most of Conor's conclusions, especially about the venality of lawmakers who preach the virtues of "limited government" and then vote to infringe upon individual liberties, I write briefly to point out that, as bad as it may seem to some, what happened Thursday evening could have been a whole lot worse.

In the National Defense Authorization Act, the Senate had before it statutory language that would have codified into federal law indefinite detention for American citizens. As I wrote five weeks ago, even this dubious language was better than the language initially proposed by the Three Horsemen of the Apocalypse: Sens. John McCain, Lindsey Graham and Joe Lieberman. What's important to remember today is that neither of these bad measures passed into law. That would have truly been awful.

Instead, what did become law Thursday was a typical legislative dodge that pushes tough choices about the Constitution back to the federal courts to decide. This graph came toward the end of Conor's piece but it is worthy of emphasis. Conor wrote:

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.
Here is how Charlie Savage of The New York Times described it in a story the headline of which was "Senate Declines to Clarify Rights of American Qaeda Suspect Arrested in U.S." Savage wrote:
The Senate on Thursday decided to leave unanswered a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial.

After a passionate debate over a detainee-related provision in a major defense bill, the lawmakers decided not to make clearer the current law about the rights of Americans suspected of being terrorists. Instead, they voted 99 to 1 to say the bill does not affect "existing law" about people arrested inside the United States.
If you are a glass-half-empty sort of person, you could argue that the Senate failed Thursday to take a courageous stand against fear, cowardice, and the patently unconstitutional infringement upon due process guarantees. You could argue that the failure of the rectifying amendment offered Thursday by Sen. Dianne Feinstein, or the near victory earlier in the week for a dangerous amendment offered by Sen. Kelly Ayotte, are signs that the battle for the soul of terror law already has been lost.

But if you are a glass-half-full sort of person, you could argue that the Senate avoided the worst result here. The threat of a White House veto, and the persistent complaints about the new detention policies by law enforcement officials, convinced enough senators that they had more to lose than to gain by pressing ahead with the onerous new rules. Yes, it's a shame that the Feinstein Amendment didn't pass. But the White House, the Justice Department and most Senate Democrats were playing defense, not offense, throughout this whole legislative ordeal. And when you are on defense, a scoreless tie doesn't seem so bad.

The law today is no better or worse than it was last week, or last month, or last year. It is no more settled than the last and the next Supreme Court decision which addresses the constitutionality of the relationship between the government and U.S. citizens suspected or accused of terrorism. And the presidential veto threat remains in place (as of Friday afternoon) because the Republican-controlled House of Representatives did pass the new detention measures several months ago. My guess is that it's more likely that the House will move toward the Senate's view rather than the other way around.
 
Look, I'm the first to decry congressional gridlock. But on this topic, at this time, it's about the best civil libertarians could have hoped for.
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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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