Adam Serwer writes: Can Americans be indefinitely detained by the military on suspicion of terrorism if arrested on American soil? Thursday evening the Senate added a compromise amendment to the defense spending bill that states: Maybe. Specifically, it says the bill does not alter current authorities relating to detention, leaving either side free to argue whether current law allows or prohibits indefinite military detention of Americans captured in the US.
The compromise amendment passed by a 99-1 after a previous effort by Senator Dianne Feinstein (D-Calif) that would have explicitly prevented the indefinite detention of Americans without trial failed 45-55. Several Democrats joined Republicans in blocking the latter amendment with Republican Senators Mike Lee (R-Utah) Rand Paul (R-Ky) and Mark Kirk (R-Ill) joining most Democrats in voting for Feinstein’s amendment.
The reason the compromise amendment worked is that it leaves the question of domestic military detention open, leaving the matter for Supreme Court to resolve should a future president decide to assert the authority to detain a US citizen on American soil. Senators who defended the detention provisions can continue to say that current law allows Americans to be detained based on the 2004 Hamdi v Rumsfeld case in which an American captured fighting in Afghanistan was held in military detention. Opponents can continue to point out that the Hamdi case doesn’t resolve whether or not Americans can be detained indefinitely without charge if captured in their own country, far from any declared battlefield. They have the better of the argument.
Dahlia Lithwick writes: The detainee language only makes us all safer if you assume that “they” are always guilty whenever the government says so. It’s the job of the courts to decide whether the government is right. Justice Antonin Scalia himself put it this way: “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. … The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
One of the two Republican senators to vote for the Udall Amendment yesterday was Sen. Rand Paul, who quoted Thomas Jefferson: “The means of defense against foreign danger historically have become instruments of tyranny at home.” No. Truer. Words. At this moment in America we seem to be so fond of dividing Americans into us and them that we have created all sorts of intriguing new legal double standards for the thems. Don’t think for a minute that these new powers will be used only against suspected terrorists. We already know that suspected illegal immigrants, suspected environmental activists, and suspected protesters have very different legal rights—which is to say, far more limited rights—than anyone else. And as Benjamin Wallace Wells detailed last August, the landmark anti-terror legislation known as the Patriot Act has, in the 10 years since its passage, been used in 1,618 drug cases and 15 terrorism cases. You’d never know it from watching the GOP hopefuls joyfully demonize women, immigrants, the poor, the prisoners, OWS protesters, and union members, but at some point, them always becomes us.