Thanks for the clarification. It doesn’t sound as bad when you put it that way.
I know that I really shouldn’t be surprised or upset. Almost every U.S. President from the beginning of TR’s Administration onwards have voted for or endorsed some heinous shit to the point where compared to what his predecessors did I think that Nixon got a bad rap. But still, this hurts me deep. Thomas Jefferson owning slaves or FDR imprisoning Japanese-American citizens deep.
You know, way back when, during the 2008 primary debates when Obama said without hesitation that if Pakistan did something we didn’t like he’d send in the Army I thought he was just being naive or hasty or pandering. But no, apparently that’s what he really believes after a ‘reasoned’ consideration of the topic and bills like this are just a reflection of that warmongering.
You know, the terrorism-hysteria in the United States is just sickening. I had a history class not too long ago where a majority of the people said that it was scarier to live in the post-9/11 world than in the post-WW2 world. And I’m like ‘are you fucking kidding me’? I’m not going to go ahead and say that I’m always against the abridging of rights - I think that Lincoln did the right thing during the American Civil War, even though he should’ve fallen on his sword after things got under control - but seriously, this kind of delusional, bunny-pantsed flailing is embarrassing and infuriating.
Just wanted to offer a quick explanation to this OP by Silenus that was closed because there are multiple threads on the same topic.
There are many problems with this Act, however, it’s not that the military can ***now ***indefinitely detain American combatants. They could do that for quite some time now. You still have the right to challenge that detention through the use of a writ of habeus corpus.
Hamdi v. Rumsfeld (2004) holds that American enemy combatants can be indefinitely detained (ie, detained until the end of the hostilities). This Act, as passed by the Senate, did not take a stand on that issue and the Senate passed the Act as it reads now 93-7. Because it doesn’t take a stand, Hamdi still controls. Or rather, this Act doesn’t change things, they remain as they were.
I would note that Hamdi isn’t a “strong” holding (it’s not a majority, just a plurality) - so it’s open to some interpretation. Some of the Justices said the Non-Detention Act prevented just this situation (i.e., can’t detain Americans unless Congress says so). However, the plurality in Hamdi says when you authorize a war (here through the AUMF), it’s inferred that you will detain your enemy if captured; that’s a necessary incident of war that goes back ages. Thus Congress did authorize detention of combatants by passing the AUMF, just not explicitly. If someone truly is a combatant, American or otherwise, they should be detained - not because they committed a crime, but because they are an enemy soldier being detained in a war.
CHC - Thank you. I’ve been fielding questions from my students all morning about this, and your detailed dissection of the issues have been very helpful to me and them in understanding the ramifications (or lack thereof.)
Make sure your students are still upset, though. There’s plenty in this Act to get upset about. Just not what we discussed above.
For instance,
The Act reaffirms the “war” part of the GWOT. Thus, we’re going to be leaving Afghanistan soon, and we will truly just be in a war against various terrorist groups spread among many nations. So, instead of anyone being release because we left Afghanistan and it’s the “end of hostilities”, they’ll continue being held. Not that anyone wouldn’t have guessed that outcome.
The Act limits what the Executive can do. While I personally agree a military commission/trial is the best route in some situations, it should not be the only route. This Act does not allow the transfer of combatants held in Gitmo to be tried in a federal court. The Executive/DOJ should have the option to decide how/when to try a combatant/criminal.
This Act compels military detention upon capture.
This Act fails to say what happens to a US citizen combatant captured inside the United States. We can guess Hamdi applies, but he was captured in Afghanistan (which is why I stated its open to some interpretation). Congress is apparently is just leaving that tough question for the courts to decide.
Just an update that the House approved the defense bill 283-136. It goes to Senate today who will mostly likely approve it in the current form and then on to President for his signature - President stated he will not veto it. There has been changes relevant to detention/terrorists since this thread started, which is why Obama dropped his threat to Veto.
See Article:
Yes, I saw that news item. Interestingly, it doesn’t lay out the details of the changes that were negotiated any why those are acceptable to Obama.
Yea, it’s hard for articles to get it right so quickly after it happened.
However, as far as I can tell,
1 - the “requirement” to hold captured suspects in military custody has been removed, or at least muddled.
2 - Obama can use the federal courts as a tool to handle suspects.
3 - some parts of the bill are very broad and state the Executive will determine the fine details on how to implement those provisions. This gives the President his own discretion on how to do that.
There are likely more reasons, but those are pretty solid. Having said that, and looking more broadly, the President does believe in a ‘war’ on terror, he does believe in holding enemies in that war indefinitely, and he does believe the war can extend from any ‘hot’ battlefield. So it’s not like he was going to veto for any of those reasons.
I concur. This is not a good day for America.
It’s clearly unconstitutional. Habeas corpus can be suspended only in times of insurrection or invasion and a terrorist attack is neither.
Here is one quick analysis.
Just want to add, while it’s a quick analysis, it’s probably going to be the best you can find at this point. The blogger is extremely knowledgeable about the subject matter broadly (gwot) and this actual bill.
Lawfare is a great blog to follow if you’re interested in this subject.
Holy shit.
What happened to your country?
One party is abjectly evil, the other is too busy writing captions on cat pictures and hanging out in plazas blithering meaningless slogans about “the one percent” to pretend to care about civil liberties issues anymore. To most Democrats, this sort of thing was a convenient thing to notice during the Bush years, and now that their guy is doing it they can’t muster enough concern to stop it.
But it’s madness. I mean, real madness. No Habeas corpus? That’s no kind of democracy I understand. Jesus. Whow.
It doesn’t effect your right to challenge your detention using the writ of habeas corpus.
Give me a link that’s saying otherwise and I’m sure they’re misinformed or maybe interpreting something incorrectly.
Both Bush and Obama have steadfastly maintained that you have no such right, so in that sense, no, this new law does not change anything.
Let’s be clear which group we’re talking about.
“You” doesn’t apply to Americans.
“You” doesn’t apply to foreigners detained in Gitmo.
“You” might apply to foreigner combatants held in Afghanistan, but that would be unprecedented to give detained enemies the right to challenge their detention in a federal court using a writ of habeas corpus. It’s not madness.
ahhh, i see now.
Just add to that article, “Americans imprisoned without charge can challenge their detention in federal court using the writ of habeas corpus.”
Also, the Bill does not authorize the indefinite detention of Americans captured inside the US. It’s silent.