Alright y'all, welcome back to the show, it's Anti-War Radio, and we're joined on the phone by Marcy Wheeler, Empty Wheel they call her, she runs the blog at EmptyWheel.net, right?
Hang on, I gotta click the right thing here.
Welcome back to the show, Marcy, how are you doing?
I'm doing alright, Scott, how are you?
I'm doing great, appreciate you joining us here.
Well, who has EmptyWheel.com, not you?
No, somebody's trying to extort me for it.
Oh, bastards, alright, well EmptyWheel.net is where people can find your great stuff, and obviously I got you on today to talk about this new McCain-Levin Amendment to the Defense Authorization Bill.
Senator Udall had proposed an amendment to strip their amendment out, and Udall's amendment failed yesterday in the Senate, and that's the last I heard about it, they haven't passed the whole thing yet, right?
No, they just issued the forum call, so they've got 30 hours to debate it, and a couple more amendments to pass, including one which I believe is still active, is a Kelly A. Yucks 1068 Amendment, which would kind of legalize torture again.
Oh, good, wait, which part of it is that?
They still have some amendments pending, and I believe Amendment 1068, which was sponsored by A. Yucks from New Hampshire, basically says we're going to make it okay to sneak and torture, I mean, this is not what she says explicitly, but basically says we're going to make it okay to sneak and torture again, it's the field manual.
Oh, okay, well they already rewrote the field manual to allow torture, I thought.
They want to go beyond the field manual now, or they want to rewrite it even worse?
I think she wants to rewrite it even worse.
I see.
Because under Appendix M they can already do manipulation of temperatures, and sleep deprivation, and these kinds of things, right?
Yep, but she wants to be able to go back and bring back enhanced interrogation.
Alright, well, anyway, so I talked with Chris Anders from the ACLU the other day, but maybe some people missed it, why don't you just basically give us the lowdown on what exactly this amendment says, not the torture one, but the detainment one, and maybe if you could debunk the myth that this doesn't apply to American citizens, which a bunch of people on the right apparently are pushing this week.
I think everyone on the right is saying that it does apply, I mean, Lindsey Graham is pretty explicit about that, but there are...
Well, it's the right-wing bloggers, I guess, Reason, Hit and Run blog, I think it was them, had links to some right-wing bloggers saying that, nuh-uh, see, it says right here this doesn't apply to Americans.
Right, there are three parts to it.
One is the repetition of a bunch of measures that are basically already in place that limit the president's ability to transfer people out of Gitmo, and limit the ability to transfer people into the United States.
Those are all kind of status quo, if anything, they're a little bit better than they were.
But then there are two other parts to what's going on.
The first is a restatement of who is a covered person under detention authority.
So it's basically a restatement of the 2001 AUMF, although I read it as, it says you need to be al-Qaeda, Taliban, or an associated force.
So that's, in one way, an expansion of the 2001 language, but in another way, it reigns in the application that the administration has already been making of AUMF language, both the 2001 one and the 2002 one.
How does it reign it in?
Well because the 2002 one, Jack Goldsmith has, in some OLC opinions, and I presume this was repeated in later OLC opinions, said there doesn't even have to be a tie to the Taliban or to al-Qaeda.
So in his 2004 OLC opinion, basically saying you can illegally wiretap anybody, he says all you need to be is a terrorist who is striking at the United States.
It could be Iran, it could be FARC, it could be Hezbollah, so that's an active interpretation we know that the executive branch has already used.
The Levin-McCain language at least says, well you've got to have some tie to al-Qaeda.
So to some degree, you know, I think that's one of the reasons the administration is complaining, because they've already got OLC stuff on the books that goes beyond that, so they're sort of in trouble there.
That's one part of it.
The other part, which is the really horrible part of this, is, that's 1031, and then there's 1032.
And 1032 says that anybody tied to any one of these covered people, who was involved in either planning or in an act against the United States, would presumptively go into military detention.
So this would count for, in recent memory examples or whatever, the guy that was accused of the plot to fly the remote control planes into the Pentagon, or I guess even the guy that was recently entrapped by the NYPD, that the FBI were too embarrassed or jealous that they didn't make it up in the first place or something and refused to participate in.
Those people would be turned over to the military without getting a single hearing in court?
Well, no, those wouldn't by default.
What the Red Wing blogs are right about is 1032 says this doesn't, that the requirement doesn't apply.
So in other words, the default for American citizens are U.S. persons for, you know, resident aliens that get caught for doing something in the United States isn't automatic military detention, but it certainly allows military detention of these people.
But that's true anyway.
I mean, that's been true since 2004 with Hamdi.
But for example, the underwear bomber, who was not either a U.S. citizen or a resident alien, would have all automatically been withstopped from military custody unless the administration said here's a good reason why we don't want to do that.
But the problem is, I mean, it basically is a radical step saying we're going to make military law in this country a default for any category of people, which is going to slippery slope and continue to expand because that's what all of these things have done.
And it's downright stupid because the military law isn't equipped to deal with any of these people for a number of reasons.
Well, I mean, mostly because they threw out the military's law and they started making it all up whole cloth with David Addington and them in 2001, right?
But but but also because, I mean, you know, I hate to say it, but but there's stuff that goes on under DOJ that that, you know, DOJ has taken to kind of arresting people, keeping them for two weeks, you know, saying, well, either they get there, you know, they wave their Miranda every day.
And over the course of those two weeks or two months in the case of Ahmed Warsame, basically getting them to secretly cooperate, that's all allowed under DOJ.
It's less clear, you know, what happens under the military.
And the other thing that's allowed under DOJ, which not which there's no means to do under the military, is to make cooperation agreements.
So, in other words, I suspect one of the reasons why we're holding Warsame in in civilian custody is because he's helping us find a bunch of Al-Qaeda in the Arabian Peninsula people.
You can't really reward that kind of cooperation.
Which guy is he again?
The one you're talking about?
He's nutty.
He's this Somalian, this Mali that we picked up coming back from Yemen and floated around on a boat for two months, but he's now being tried in New York.
OK, I guess I'd miss that one altogether.
I don't know about it.
Yeah, that was we picked him up.
We picked him up in April and then announced that we had him in July and we were floating him around the Mediterranean or something for the interim two months interrogating.
Oh, yeah, yeah, yeah, yeah.
OK.
I remember what you're talking about now.
So your point is then that if I understand this right, basically you're saying they could have turned everybody over to any of these people over to the military if they wanted to all along.
The problem, at least that the administration has with this, is that by making it the default that you turn over a terrorism suspect to the military, they have to notify Congress if they choose not to.
And they don't want to do that.
They want to continue keeping everything wholly inside the White House's authority here.
Right.
Basically.
Right.
All right.
So at least I understood that much.
Hold it right there, everybody.
It's Marcy Wheeler from EmptyWheel.net.
And she's got a lot more to say about this.
I got a lot more to read during the break.
Stay tuned.
All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton.
I'm on the line with the Empty Wheel, Marcy Wheeler, EmptyWheel.net is her blog.
And the particular article at issue here is, the detainee debate heats up the rule of martial law versus the unitary spookery.
And this is about how, now, would you put Udall in the same category with Dianne Feinstein as you write here as making this sort of dishonest argument that what they care about is the rule of law, when what they really care about is lawlessness on the, they prefer protecting lawlessness on the part of the DOJ rather than the military?
You know, I'm not sure one way or another.
The odd thing about Udall's amendment, one of the things I found strangest about it is that he actually did include language about who would be covered under detention.
It was just far broader than the language that Levin and McCain used.
And people were like, well, the intention is that the administration will have to go back to Congress and we'll have hearings and we'll pass any legislation, but there's no chance any legislation is going to pass that's not tied to the defense authorization.
So, you know, I thought it was ill-conceived, and what, to me, was very interesting about it was that he included the Iraq War AUMF in there, even though, and this is something that I think Rand Paul actually deserves some kudos, because his effort to repeal the Iraq War AUMF yesterday was as much an attempt, I mean, it was more of an attempt to rein in the kind of limitless executive than I think the Udall amendment was.
Udall supported Rand Paul's amendment to repeal the Iraq AUMF, and I think we need to start getting more into that kind of conversation about what it really would take to limit the indefinite detention of Americans, because the Udall amendment would not have done that.
The status quo does not do that.
The only way to stop the indefinite detention of American citizens is to pass law saying you can't do it, or to repeal the laws like the Iraq AUMF and certainly the 2001 AUMF that says that the administration has used in secret to say that they can do it.
So we need to start getting a lot more serious about what it's going to take to rein in this power, and I think Paul's effort yesterday was just as important as Udall's effort.
Well now, I'm confused about this because in the debate that you cite in your blog here at EmptyWheel.net, you talk about how they've had the power, and you just mentioned this in the previous segment too, they've had the power to detain Americans and turn us over to the military ever since the Hamdi decision, but I guess I don't remember the Hamdi decision saying that.
What did I miss there?
Well, so Hamdi was, remember, it was a mess of an opinion.
There was not a five-person majority, but the plurality basically said, there is no bar to this nation's holding one of its citizens as an enemy combatant.
That's part of Hamdi.
Because if you recall, Hamdi was, he's Saudi, but he's also an American citizen, and so we captured him in the battlefield, and after he issued a habeas petition, we kept him in military custody in the United States, but we did keep him in military custody in the United States.
Now, what some people are saying is what's new is that the administration could arrest an American in the United States and put them into military custody.
That's, you know, Hamdi would presumably support that, and frankly, I don't think you can get to the point where you can kill an American citizen, where you can kill Anwar al-Awlaki without having already made the argument that you could also detain an American captured in the United States.
Well, but they didn't really have a legal argument for killing al-Awlaki, right?
They just said, we felt like it.
No?
No, they did have a legal argument.
They said he was an enemy combatant.
He qualified under both the AUMF and inherent self-defense, but they didn't have anybody review their decision.
And as far as I understand, Congress still hasn't seen that opinion, much less any court.
So, I mean, but that's the point, is what the administration, what both administrations, what Bush and Obama have been doing, especially since 2004 when they moved away from John Yu's Article 2 power, is been saying, both on detention and all these other powers, they've been saying the AUMF gives the administration full war powers, Comdi confirms that, and full war powers include the right to detain enemy combatants, and the right to kill enemies, and the right to wiretap people, and the right to geo-locate people, and the right to do probably 10 other things we don't know about yet.
And until we get at that structure, until we get at the administration, both administrations claim that the AUMF affirmatively gives the administration these powers to trump things like FISA, or to trump things like murder laws, until we beat back at that secret interpretation, it doesn't matter.
It's still going to be true, it's still going to be possible, the argument is still in place, the legal justification is still in place in those secret OLC opinions to arrest us and hold us in military detention.
And nobody's fixing that, I mean nobody, the way to fix that is to repeal the AUMF, or to add clarifying language saying, we don't want you to detain Americans, but I think the reason why even the Democrats aren't doing that, aside from the fact, I mean one of the things that it's really important for people to understand is, when 1031, the Senate Armed Services Committee's language was first passed, it had language specifically preventing American citizens, except it's constitutionally approved, so it had language in there giving some protection for American citizens, and according to Carl Levin, it wasn't the Senate Armed Services Committee, but it was the administration who took that language out, they took that language out at the request of the administration.
So in other words, the administration doesn't want any of these laws limiting its power, and it specifically went out of its way to take out limits on what it could do to American citizens.
Oh yeah, so here was the thing, you make the point in your article that what they're trying to avoid here is a fast and furious type scandal where there's basically this legislation would mandate that they create that much more paperwork when they're screwing around with their entrapped people and their double and triple agents and informants and whatever, that this could all end up blowing back on them, because it would be that much less secret.
Yeah, I mean, one of the things that Levin-McCain does, for better or worse, is it requires the administration to put in procedures saying who gets to decide whether somebody is a terrorist or not.
Write that down and share it with Congress.
It also requires the administration to brief Congress on who's covered under the AAUMS, which is something they've never had to do before, and in the case of Warsawmi that I talked about, it appears that some of them were surprised by it, that all of a sudden the administration was including al-Shabaab in Somalia, and that hadn't been understood widely that that was the case.
So, you know, the problem is, and you read the title of my post, that you've got Republicans who are nutcases.
I mean, not all of them, obviously, I think Rand Paul has the right idea here, but you've got Republicans who are saying, you know, we want military law to trump civilian law.
That's a terrible thing.
In fact, someone pointed out on my Facebook page this morning that other than Rand Paul and I think one other person, and Mark Kirk, all of the Republicans voted against the Udall Amendment.
Correct.
But a bunch of Democrats voted for it, voted against it as well.
I mean, a bunch of the Senate Armed Services Democrats, Sheldon Whitehouse did, which actually was a bit of a surprise.
And a couple of other more kind of generally reasonable, Bob Casey, voted against it.
But you know, I'm not sure, the Udall Amendment, to its credit, would have taken this debate out of the defense authorization, but I had problems with the fact that he kind of reified the notion that the AUMF, that both AUMFs give detention authority, because that allows the administration to detain any terrorist.
And given the way, given the kind of people who are being defined as terrorists these days, I think that's problematic.
You know, so I just think what really needs to happen is not, because the other thing is the Democrats aren't trying to rein in this power.
They're saying, oh, Levin McCain, it authorizes indefinite detention.
But their solutions aren't fixing the problem.
Right.
It's the war.
The war is the health of the state.
That's what we say at Antiwar.com.
All right.
Thanks so much, Marcy.
I really appreciate your explanation to all this.
What a mess.
Thanks, Scott.
Take care.
Marcy Wheeler, everybody.
EmptyWheel.net.
Go get educated over there.
