The amendment which was defeated on a vote of 37-61, would have struck the following controversial provision, authored by Sen. Carl Levin (D-MI), from the defense bill:
Section 1031 – “Congress affirms that the authority of the President to use all necessary and appropriate force…includes the authority for the Armed Forces of the United States to detain covered persons…Detention under the law of war without trial”
The amendment’s author, Sen. Mark Udall (CO-D) argued that military and law enforcement officials needed to have more input on a policy that would so significantly impact their duties, saying:
“We are ignoring the advice and the input of the director of the FBI, the director of the intelligence community, the attorney general of the United States, the Secretary of Defense and the White House.”
In fact, the White House is so opposed to the controversial provisions in this bill, that the President has vowed to veto the legislation if it comes across his desk with the Levin language in it, though civil libertarians shouldn’t necessarily jump for joy. The White House seems less concerned about civil liberties than defending its turf from what it has criticized as Congressional micromanagement of the War on Terror.
But other critics say the provisions violate the Constitution and grant the government sweeping new powers to police its citizens with the nation’s military and hold them indefinitely without charges on the mere “suspicion” of even associating with terrorists. As reported on Freedom Watch, Judge Andrew Napolitano’s Fox Business program, Sen. Lindsey Graham disagrees with this view, saying:
“The homeland is part of the battlefield, and people can be held without trial whether an American citizen or not.”
Napolitano remarked, “Guess he hasn’t read the Constitution recently.” Meanwhile on the Senate floor, Senators Rand Paul (R-KY) and John McCain (R-AZ) battled over the proposed amendment to change the language in the defense bill. McCain argued that without the provisions, terrorists would be able to reenter the battlefield and endanger Americans:
“Facts are stubborn things. If the senator from Kentucky wants to have a situation prevail where people who are released go back in to the fight to kill Americans, he is entitled to his opinion.”
McCain’s words were especially ironic because it was John Adams who once said “Facts are stubborn things,” while defending British soldiers during the Boston Massacre trials because of his firm belief that even as enemies to America’s best interests, these British soldiers had a right to a fair trial with due process and legal representation. Facts are stubborn things.
“…and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” -John Adams
One stubborn fact that McCain would not address despite a direct question about it from Rand Paul, is the fact that these provisions include American citizens within the purview of unchecked military policing powers in violation of the Constitution. The U.S. Constitution states in Amendment 5:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment 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 or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
And if the McCains and Grahams of the Senate wish to rebut that an exception should be made for American citizens engaged in war against the United Sates, they will find themselves in contradiction with another part of the U.S. Constitution, Article 3, Section 3, which states:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
So even American citizens engaged in war against the United States are Constitutionally guaranteed due process, with the Framers further specifying that in the course of their due process, they can only be convicted on the testimony of two witnesses to the same overt act, setting an even higher bar for their conviction than the Constitution does for a non-treasonous crime in the Fifth Amendment.
This subversion of our own form of government in the name of fighting terrorism is the reason why the statesman from Kentucky is so passionate in his opposition to the detainment provisions, arguing:
“Should we err today and remove some of the most important checks on state power in the name of fighting terrorism, well then the terrorists have won. Detaining American citizens without a court trial is not American.”