A hearing on a provision in the National Defense Authorization Act (NDAA) that grants the military the authority to indefinitely detain US citizens without charge or trial was held by the Senate Judiciary Committee this morning. The hearing was on legislation proposed by Sen. Dianne Feinstein that would clarify that no authority permits the indefinite detention of US citizens.

Rep. John Garamendi and Jeff Landry, two congressmen who have bills in the House that would reaffirm due process rights of Americans and deal with issues presented by the NDAA, were witnesses during the hearing. Following their statements, Lorraine K. Bannai, director of the Fred T. Korematsu Center for Law and Equality and Stephen I. Vladeck, law professor and associate dean for scholarship at the American University Washington College of Law, both made statements and were questioned. Steven G. Bradbury, former acting Assistant Attorney General and principal deputy for the Office of Legal Counsel of the Justice Department, also was on the panel.

An author of one of the Bush torture memos, Bradbury was Sen. Chuck Grassley’s choice for a witness. He adamantly opposed the legislation proposed by Feinstein.

Bradbury’s witness statement declared:

…the evident purpose of the legislation is to prevent the President from detaining as an enemy combatant under the laws of war, without criminal charge, any American citizen or lawful permanent resident of the United States who is apprehended in this country, even if the person is captured while acting as part of a foreign enemy force engaged in acts of war against the United States, such as a US-based terrorist recruit of al Qaeda acting to carry out an armed attack within our borders…

He stated that he opposed the proposed legislation because there could be “extraordinary circumstances during an armed conflict when the President may determine it necessary to detain a US citizen as an enemy combatant consistent with the laws of war.” He said during the hearing he believed it would create “unnecessary conflict” between the Legislative and Executive Branches of US government. The proposed legislation would make it so the ability to collect intelligence would be impeded by requiring criminal charges to be brought against US citizens.

Feinstein pushed back on this assertion that the legislation could make it difficult to collect intelligence:

I’m in a position where I see that it has not and that we’ve had the successful criminal prosecution of over 400 terrorists since 9/11 including Umar Farouk Abdulmutallab, the Christmas Day bomber, including Najibullah Zazi and his compatriots who were traveling across the country to put bombs in the New York subway as well as clearly hundreds of others. So, doesn’t this refute your assertion, the fact that the record doesn’t document this?

Bradbury stood by his assertion. Feinstein disputed what he was arguing.

Since your day here, what’s happened is the FBI now has 15,000 people in an intelligence unit in 57 offices across the United States and that’s how 20 potential attacks were prevented. Abdulmutallab was Mirandized. It didn’t stop him from pleading guilty. He’s pled guilty and he’s serving a life sentence. So, I don’t think the theory matches the practice.

You say that to indefinitely detain United States citizens is an accepted incident of military force, but doesn’t the Posse Comitatus Act, which has been with us for over a century, fly in the face of the assertion that domestic apprehension by the military of United States is citizens is “fundamental and accepted”?

Bradbury repeated the assertion that this legislation proposed would “strip away that sovereign power that any country has and prohibit the exercise of that option in an extreme circumstance where it may be determined it is necessary.” To which Feinstein responded, the “issue here is no charge or no trial til the end of hostilities, which can be thirty years from now. So that, I think, is an overwhelming issue that the Constitution speaks to loud and clear.”

Senator Al Franken did not think Bradbury’s legal opinions had much credibility. He challenged Bradbury on his history as a torture memo author for the Bush Administration:

I’m not a little disappointed to see that you were called to testify before us today. I think it is important to remind people watching this hearing that you were the author of several memos that authorized the use of enhanced interrogation techniques or what I and a lot of other people called torture during the Bush Administration. One of your memos specifically authorized the use of waterboarding, cramped confinement, slapping, stress positions, nudity and dietary manipulation and a subsequent memo said you could combine some of those techniques together and it would not constitute torture.

In addition to this history, a lengthy investigation by the Office of Professional Responsibility concluded that you had drafted these memos with the goal of allowing the CIA torture program to continue. So, it is very difficult for me, frankly, to rely on your legal opinion today. If the Office of Professional Responsibility questions your objectivity and reasonableness, then I think we on the panel should as well.

Grassley asked Bradbury if it was reasonable to compare what was happening now to the internment of Japanese-Americans during World War II, which the committee was doing by having Bannai of the Korematsu Center here to testify. Both he and Bradbury contended there was no real comparison to be made.

Franken reminded the committee that after 9/11 innocent Muslim Americans had been rounded up. It was unwarranted and people put away had no ability to contact lawyers, no ability to tell their family where they were. He had Bannai address whether the detention provisions passed last year put us closer to permitting martial law in the country.

Bannai conceded that no innocent citizens had been detained en masse. She suggested we not. It was fortunate that this had not happened yet, but due process guarantees apply to individuals no matter who they are. It seemed she was suggesting there is nothing wrong with preemptively protecting against the possibility of a massive amount of innocents being detained by passing legislation.

I am concerned at present that right now we are going to have the military involved in detaining citizens and giving the military unfettered discretion who should be detained and who should not be and that’s a tremendous concern to me. I think there’s tremendous parallels between what happened during World War II and what we’re facing today.

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The bipartisan national security consensus surfaced once again when Sen. Lindsey Graham was speaking during the hearing.

I would like to give the administration really high marks for taking the fight to al Qaeda along the Pakistan border. These drone attacks, the Bin Laden raid were really, I think, a tough call for the President to send people deep inside of Pakistan. I thought he had every legal right to do so and quite frankly that was a good outcome. But, we just can’t kill all these guys and be safe. When we capture somebody, it’s a golden opportunity to find out what the enemy is up to in future attacks.

Graham contended the “homeland” was part of the battlefield and reading Miranda rights is not the best way to collect intelligence. He firmly asserted that homegrown terrorism could be a problem and he wanted the legal system to recognize “the difference between fighting a crime and fighting a war.”

Bradbury asked Feinstein for time to make a point about how the legal system needs to understand the difference between “fighting a war and fighting a crime.” He contended:

Most Americans have a hard time dealing with these cases from a law enforcement perspective. No other war did we do this. When we captured the American citizens helping the German saboteurs, they were an enemy combatant of this country. I don’t want to lose that thought process. We’re really talking about a handful of people as American citizens, but the idea of the wars coming to our homeland is real.

Then, he used the Obama Administration’s support for targeted killings of terror suspects, including US citizens, to further justify his opposition to the legislation.

If the president says we can kill an American citizen in Yemen through the Executive Branch decision you’re an enemy combatant—I support that—why in the world couldn’t we hold them for intelligence gathering? It makes no sense to give the executive power to assassinate somebody helping the enemy abroad and if they’re lucky enough to make it to the homeland all of a sudden that’s a common crime

Bradbury’s rhetorical questions were valid ones, but they were and are valid only because the Obama Administration and a majority of Democratic politicians have done nothing to challenge this idea that all the world is a battlefield for the “war on terrorism” and war comes first and laws and civil liberties of Americans come second. Moreover, by working to normalize this idea that it might be legal to assassinate US citizens suspected of terrorism abroad without charge or trial, President Barack Obama makes it difficult to oppose the indefinite detention of US citizens if it is deemed necessary by an authority.

How does one argue against the reality that if you are abused when you are indefinitely detained at least you are not going to be dead? At least you could be released and continue on with your life when the US government is done using you to prosecute and fight a perpetual war against a “far-reaching network” of terrorist or extremist individuals that political leaders contend are capable of infiltrating the nation and indoctrinating Americans, who will mount homegrown terror attacks.

The war logic stymies any efforts to reaffirm the rights and civil liberties of Americans.

Bradbury said he appreciated that Obama was using both the civilian and military court systems. Feinstein unfortunately stated the key is the president of the United States must be able to choose between charging someone in a civilian or military court. Again, the bipartisan national security consensus wins the day making something that is clearly wrong a non-issue.

Flexibility allows for the use of military commissions, which create a second-class system of justice.

It is good that Feinstein gave such a strong defense of due process rights in her opening statement. It is pleasing that she said, “Being in the wrong place and at the wrong time, I mean, looking the part,” is what happened to Japanese-Americans and it can happen to Americans today. But, the presence of torture memo author Steven Bradbury at the hearing shows there is a lot of ideology left over from the Bush Administration, which the Obama Administration has done nothing to challenge, that continues to pervert conversations about what rights Americans should and should not enjoy.

The rebuke Bradbury received from Franken was refreshing. He should hear that from every respectable political leader, a reminder of the role he played in creating the legal justification for torture. But, the truth is that he deserves much more. He deserves to be tried in court for his role in the Bush Administration. President Obama, Attorney General Eric Holder, Democratic leaders in Congress, etc, have all abandoned any half-hearted effort to hold former Bush Administration officials accountable. Criminals who deserve investigation walk free. Thus, it is far too easy to justify the indefinite detention of US citizens, not Mirandizing individuals, killing US citizens abroad, keeping Guantanamo Bay prison open, launching drone attacks in countries the US is not at war with and going to war without a declaration of war from Congress.