Strengthening Constitutional Self-Government

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Senate Declines to Clarify Domestic War Powers

In another example of the unambitious character of the United States Senate today, there has been a decision to not make a decision about what limits ought to be placed on the war powers of the President in regards to American citizens. The Senate passed a major defense bill and voted 99-1 to make it clear that they were not taking a stand on the currently-ambigious rules around citizen detention. In the same thinking of "We have to pass the bill to find out what's in it", Senator Carl Levin (D-MI) said that "We make clear that whatever the law is, it is unaffected by this language in our bill." Whatever the law is. Yes, our lawmakers do not even know what current law is regarding the right of the Executive Branch to detain or execute American citizens on American soil without any due process or review.

Proponents of great powers for the Executive in war argue that we are now in a state of war and that the president has both the authority and the responsibility to exert his power to defend us. The problem is, though, that the Bush Administration turned its authorization to use force against Al Qaeda and those responsible for 9/11 into a general and ambiguous war on Terror itself, leaving it as open-ended and vague as the War on Drugs and the War on Poverty-- though much more dangerous, as it involves the Executive Branch using lethal force. There were no parameters set by either President Bush or Congress to define our goals, and thus the "War on Terror" is now the longest-running conflict in the republic's history. The Obama Administration has assassinated two Americans on different occasions so far this year--terrorist suspect al-Maliki and his teenage son--in the Middle East. There is an argument to be made in al-Maliki's case that they were enemy combatants in an active war zone, and thus the President was authorized to kill him. The current question is whether the Executive Branch has the power to executive or permanently detain in military jails American citizens who are suspected terrorists on American soil itself. This seems to be in conflict with both Posse Comitatus and Sections 2 and 3 of Article III of the Constitution. 

We are fighting a new kind of war, that has been left open-ended for two presidencies now. It is hard to tell the difference between war time and peace time. If Congress is unready to yet figure out its role in when to decide when it is peace time and war time (since they have obviously decided to abscond from being involved in warmaking altogether, as evidenced by the Libyan intervention), they should at least look into what limits the President has on him within our own borders. We need clarification. The lawmakers need to do their jobs and decide what the law is.
Categories > Congress

Discussions - 3 Comments

What about the NDAA?

During authorization senators argued, as the Levin quote exemplifies, that they were not defining any existing law in the NDAA and that they therefore did not settle the argument over what, exactly, existing law is. Yeah, they rejected Feinstein's amendment to exclude Americans from the 9/11 authorization bill by five votes, but--like during the Libya article--they did not determine if the detention of Americans on American soil was allowed by the 9/11 authorization or not already. That is why they agreed to a 99-1 truce (I don't know the votes, but I'm going to guess that Rand Paul was the lone dissenter) to insert language saying that the NDAA is not touching the subject, refusing to either endorse or limit the power of the military to arrest American terror suspects.

This does mean that they did actually vote to allow for the indefinite detention of Americans by not voting to disallow it. But they still don't know exactly what they voted for or against, what ramifications or limits it has, and what the constitutionality of it all is, because they refuse to address difficult things like this. It seems to be more an issue of qui tacet consentire from the Senate rather than endorsement at this point.
For his part, apparently President Obama is mulling a veto of the bill. So, there's hope in that.

I'm not sure what the ambiguities are here. The SC ruled in Hamdi v. Rumsfeld that you can't treat American citizens the same way you treat "enemy combatants." Habeas corpus must be acknowledged. The Senate can pass whatever it wants, but it's pretty clear that the SC won't rule in constitutional.

The take-away here is FIX OUR CITIZENSHIP RULES. We are going to have a nice crop of domestic jihadis very soon, and they will all have to treated as the American citizens they will be. You can't have slack-ass citizenship protocols without consequences.

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