Military Detention Versus We the People

Congress has a deserved reputation for cluelessness. Our leaders have a habit of ignoring real crises like housing, education, mass incarceration, and climate change, while contriving distractions like the budget debate that essentially froze Washington, DC for the past year.

In 2010, the Tea Party rejected the legitimacy of the DC debate, paving the way for the Occupy movement to do the same in 2011. And while those contrasting movements may compete on many issues, they share in common a rejection of Washington’s political establishment.

On Monday, the Senate will grapple with Congress’ latest bipartisan foolishness, the National Defense Authorization Act. Ironically opposed by both the White House and the Pentagon, it would expand preventive and arbitrary detention beyond Guantánamo Bay and the CIA’s shuttered black sites, importing it into the domestic United States.

The Senate Armed Services Committee, led by Senators Carl Levin (D-Michigan) and John McCain (R-Arizona), approved the bill despite its provisions for military detention of any suspect (even those apprehended within the United States) accused (not proven) of involvement in any terror-related offense. Presumably, military detention would include those accused of offenses as innocuous as “lying to a federal agent,” unrelated to actual terrorism yet classified as terror-related.

The most glaring problem with the committee's legislation is its violation of our nation’s most fundamental values shared across our political spectrum.

First, the committee’s proposal accepts prosecutors as the arbiters of guilt. We have courts in America to check executive power. Impartial judges limit over whom the state may exercise its coercive power to deny freedom. We don’t trust prosecutors to make those decisions, because we presume innocence. Being considered “innocent until proven guilty” is a bedrock constitutional norm, a cornerstone in the edifice our Founders constructed to defend freedom from the potential tyranny that Levin & McCain casually invite.

On the one hand, racial and ethnic profiling in the wars on drugs, immigrants, and terror have already shredded the presumption of innocence. Millions of Americans routinely treated as presumptively guilty due to their race or ethnicity have been subjected to illegitimate prison sentences or deportation. But at least those cases involve a judicial process of some kind.

A separate fundamental principle restrains the military from operating domestically. Levin and McCain invite domestic military deployment.

Beyond its blatant violation of fundamental American principles, Levin and McCain also play loose with the system. Their bill passed the Armed Services Committee essentially in secret, without even a single hearing on their radical and seemingly Soviet-inspired proposal.

Moreover, their committee overstepped its jurisdiction, invading the spheres of the Judiciary and Intelligence Committees. Senators Patrick Leahy (D-Vermont) and Dianne Feinstein (D-California), who chair those committees, raised their voices in protest—and Senator Mark Udall (D-Utah) introduced an amendment that would reverse Levin-McCain’s detention provisions. Even within a single, insular, tone deaf political party, the left and right hands actively work at cross purposes.

Republican complicity in Sino-Chinese inspired security policies, like the Patriot Act, is by now well established. The support from some Democrats for this proposal, however, reflects what is wrong with Washington—beyond policy.

In every election cycle since 1998, the electorate has loudly demanded to “throw the bums out.” In 2008, We the People rejected the Bush administration's War on Terror to choose a candidate who, inspired by our Founders, pledged instead to “reject the false choice between liberty and security.” Congressional Democrats doubling down on Bush era abuses betray their own supporters.

We live in a nation where, apparently, we enjoy no electoral alternative to human rights abuses. Will the real Americans please stand up?

Even worse than the betrayal of Democrats, however, is the betrayal of Congress—by itself. Our Founders dedicated the Constitution’s first Article to Congress, to reflect its primacy after our revolution against a unilateral monarchy. The central theme of the Constitution is its system of checks & balances to limit executive power and prevent tyranny.

But rather than resist executive power, today’s congressional leaders actively expand it. Over the past decade, Congress has granted presidents from both political parties every power they have sought: the power to eavesdrop en masse on every American household without individualized suspicion, the power to ignore the Nuremberg principle and torture with impunity, the power to initiate unilateral war, and more.

Levin-McCain is substantively, procedurally, and structurally even worse: It actively outflanks the executive, granting powers that neither the White House nor the Pentagon want, and have even pledged to resist. Madison and Jefferson would each roll in their graves at Congress betrayal of their legacy.

The one positive aspect to Levin-McCain’s essentially Soviet proposal is the hope it offers to inspire unity among Americans. There may yet remain principles, even if merely as meager as the right to trial, on which we all can agree.

Torn between the Tea Party, Occupy Wall Street movement and alienated moderates, much of America shares a rejection of Washington's habitual foolishness. And with these competing movements having already organized and mobilized so many diverse Americans, there has been no better time to come together.