Everything is so upside down that the cosponsors of this tyrannical legislation, Sens. John McCain (R-Ariz.) and Carl Levin (D-Mich.), felt compelled to write a Washington Post op-ed to defend its most controversial provisions, and as if to underscore the myopia of our political culture, Congress giving Obama the go-ahead to indefinitely detain Americans without due process didn't even rank as controversial enough to be mentioned in their piece! In fact, the op-ed states, "The bill does not tie the administration's hands in deciding how best to handle a detainee."
That was actually their focus: Whether another provision of this nearly approved bill does too much to take away the president's discretion. Obama has even threatened to veto the bill, if and when the Senate passes it, not because he is alarmed by its civil-liberties implications, but because the extraordinary powers it would hand him are in some cases less sweeping and more constraining than what he has asserted for himself via frustratingly secret Office of Legal Counsel memos. (For example, it would force him to keep some War on Terror detainees in military custody.)
Where is the Tea Party Caucus, the avowed champions of liberty and small government, the self-described "constitutional conservatives," the people so mistrustful of Obama that some of them say that he is deliberately trying to make the American people less free and lying about it?
Have they nothing to say about affirming his power to detain indefinitely?
In the Senate, Rand Paul alone among Tea-Party-affiliated Republicans opposes the legislation. Republican Sens. Mike Lee, Ron Johnson, and Jim DeMint, all current or former members of the Tea Party Senate Caucus, voted against Sen. Udall's amendment to strip away the bill's worst civil-liberties abuses, and for preserving their supposed nemesis Obama's power to indefinitely detain any American citizen if he makes so much as an evidence-free assertion that citizen is a terrorist. Other Tea-Party favorites like Marco Rubio, Ron Johnson, and Pat Toomey voted the same way.
They're all unworthy of the Senate, as are the Democrats, Sen. Levin first among them, who voted the same way.
The House version of the bill was less egregious, but every single member of the House Tea Party Caucus save Tom McClintock (R-Calif.) voted for it. If the bill makes it to conference committee, will these 51 Tea Party Republicans change course and side with the Constitution's guarantees of due process and a trial in open court even for those accused of treason? Or will they become complicit in declaring all of America a battlefield where anyone can be indefinitely detained?
(I'm betting they keep supporting the bill for reasons I explain here.)
Here's how Minnesota Sen. Al Franken, a Democrat, put it during floor debate:
What we are talking about is that Americans could be subjected to life imprisonment--think about that for just a moment--life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove your innocence to a judge and a jury of your peers, and without the government ever having to prove your guilt beyond a reasonable doubt. I believe that denigrates the very foundation of this country. It denigrates the Bill of Rights and what our Founders intended when they created a civilian, nonmilitary justice system for trying and punishing people for crimes committed on U.S. soil.
And here is what Sen. Paul, a Republican, said:
We are talking about people who are merely suspected of terrorism or suspected of committing a crime and have been judged by no court. We are talking about American citizens who could be taken from the United States and sent to a camp at Guantanamo Bay and held indefinitely. This should be alarming to everyone watching this proceeding today because it puts every single American citizen at risk. There is one thing and one thing only that is protecting American citizens, and that is our Constitution, the checks we put on government power...
...the detainee provisions of the Defense authorization bill do another grave harm to freedom. They imply perpetual war for the first time in the history of the United States. No benchmarks are established that would ever terminate the conflict with al-Qaida, the Taliban, or other foreign terrorist organizations. In fact, this bill explicitly says that no part of this bill is to imply any restriction on the authorization of force. When will the wars ever end? When will these provisions end? No congressional view is allowed or imagined. No victory is defined. No peace is possible if victory is made impossible by definition.
That brings us to a final thought. One bizarre thing about this bill is that its grant of authority could and probably should be interpreted as fleeting: Everything in it is pursuant to the Authorization for Use of Military Force that Congress passed after the Sept. 11 terrorist attacks.