12/05/12 – Chris Anders – The Scott Horton Show

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All right, y'all.
Welcome back to the show.
I'm Scott Horton.
Our next guest is Chris Anders.
He is the legislative something at the ACLU.
Welcome back, Chris.
How are you doing?
Hi.
Thank you for having me.
I'm sorry.
What was it called again?
The legislative what?
Legislative council.
Legislative council.
Exactly.
This was the word that was escaping me.
I didn't have it in front of me.
Please forgive me.
Okay.
Very, very important piece of news here.
And a very important blog entry here at ACLU.org/blog/nationalsecurity.
Don't be fooled by new NDAA detention amendment.
So a little bit of background.
Of course, the National Defense Authorization Act, that's just the appropriations bill for the Pentagon every year.
And last year they had an amendment that did something.
And this year they had another amendment that supposedly undid it a little bit.
And now so you please explain if you could.
So I think a lot of your listeners probably remember the NDAA from last year, the National Defense Authorization Act.
And last year it had this very, very broad provision in it that authorized the president to order the military, any president to authorize the to order the military to indefinitely detain without charge or trial people picked up even far away from any battlefield.
And and there was a lot of concern at the time that there's no explicit exclusion for United States citizens or anybody else picked up in the United States itself.
And and at the same time, we had some really key senators, people like Senator Lindsey Graham of South Carolina and John McCain speaking on the Senate floor about how even United States citizens and even people picked up in the United States could and in some cases should be put into military prisons without ever being charged or tried for a crime, potentially for the rest of their lives.
Now, you know, for the ACLU, and I think for a lot of other people looking at this, you know, our view is that there still are protections in the United States against against that kind of detention for people picked up here.
But we also know from past experience that people can be sitting in prison for years while the courts straighten that out.
So there's certainly good reason to, you know, have have some clear laws saying that, you know, no, you shouldn't be doing this anywhere, but you certainly shouldn't be doing this in the United States.
The problem is on the House side, there was language that tried to turn this into in a very loopy way into something about habeas.
And habeas is, of course, a really important right.
But habeas doesn't require on its own that anybody actually get charged and tried with a crime.
So that was kind of their way to try to say, you know, the House Republicans to say, like, look, we're trying to take care of this.
But instead, it was kind of a false, a false promise.
We had a similar thing play out last week in the Senate.
And so Senator Feinstein offered an amendment.
And, you know, her amendment says, says, well, citizens and lawful permanent residents, which are green card holders, can't be can't be held under the AUMF unless Congress authorizes it.
And so this kind of creates all kinds of crazy problems.
And so if one thing is, is it doesn't say, you know, nobody in the United States can be held without charge or trial.
So, of course, that, you know, that leaves, you know, lots of immigrants who could be.
It also means that the military has the capacity to to operate within the United States and detain people just as long as they're doing it under the guise of looking for people who are legal immigrants but are not green card holders.
But then the other the other part of it is, is that we then had this crazy development as right before this amendment got voted on, where you had people like Lindsey Graham and John McCain going to the Senate floor and saying, saying, like, wait a second, look, we have something.
The Feinstein's bill says that that there's no authorization unless Congress for detention without charge of trial of citizens and green card holders in the United States unless Congress authorizes it.
And they said they said, well, we looked at the Supreme Court case from eight years ago.
We say, look, it looks like Congress did authorize it.
So they basically went to the floor and kind of played a big game with the amendment.
And they said, well, no, you know, we have we have all kinds of authorizations.
This whole thing is meaningless.
So now we have this crazy, you know, this crazy amendment in the House, kind of a really, you know, softly drafted amendment, the Feinstein amendment in the Senate.
And it's all going to the conference committee, which is going to try to rush through and pass something to send to the president probably within the next two or three days.
Ridiculous.
I mean, 10 or 15 of the different points made there.
It's just absolutely incredible here.
All right.
So in other words, if I understand this right, the crux of this thing is that in the name of saying, oh, gee, no, we want to limit the power from last year that went a little too far in saying that you can abduct Americans and hold them forever.
They're conceding that, yes, the military can abduct U.S. persons, citizens or not.
And then they're saying, but only if you're a citizen, then you'll get a little bit of due process.
And we'll give you and we'll say, oh, yeah, you get the Sixth Amendment and all of this.
But that doesn't even make any sense.
If you're being held by the military, that then what you're going to get a civilian trial on a military base.
Is that what they're saying?
And didn't the court already rule after the Civil War that you can't do this as long as the courts are open for business?
And and what in the hell?
I mean, I understand that.
Right.
Is that basically here?
Here's the thing, right, is is it doesn't take a rocket scientist to figure out or a or a or a great law professor, right, to figure out how to respond to the concerns that lots and lots and lots of people had last year with the NDA?
What people were worried about was the military operating within the United States and being able to pick people up here and detain them, put them in prison without charging or trying them for a crime.
Right.
If that's what people are worried about in there and there were and there were literally hundreds of thousands of people that were calling their members of Congress.
I was going in to meet with members of Congress at that time, and they basically couldn't.
They couldn't.
They couldn't answer their phones fast enough in their offices for the flood of calls coming in from people who are worried about this.
If they wanted to address this this year, all they have to do is just is just pass an amendment saying that that nobody in the United States can be put into any military prison without being charged or tried with a crime for a crime.
And that's all they have to say.
Those, you know, by 10 or 11 words.
Well, really, all they have to do is just take out the thing from last time, right?
Or they can take out what they did last year.
But instead, instead, they basically have these very loopy, poorly drafted amendments, which are all designed to avoid fixing the problem.
And so they're all they're all kind of charades to look like Congress is doing something so that they could all turn around and tell their tell their constituents, which range from, you know, everyone from, you know, real progressives to, you know, the Tea Party, the Tea Party movement and everyone in between was raising concerns.
So they want to be able to turn around and tell their constituents, look, you know, we solved what you were worried about, but not actually do that.
So, you know, if they wanted to pass something to actually fix the problem, you know, you're right, they could have they could just repealed what they did last year.
Or they could have just said, you know, look, no, there is no authority to detain for the military to detain anyone in the United States without charge or trial.
So, you know, but instead what they did, the House passed its version of something that doesn't fix the problem.
The Senate passed its version of something that also doesn't fix the problem.
And and so, you know, there's nobody should feel better about this process.
Instead, it's like it's like both the House and the Senate are looking to, you know, game their own constituents on this issue.
Now, am I right that it's really up until now hasn't been settled that the AUMF actually gives the president the authority to do anything that he can imagine?
Now, that's what John, you argued, and that's what, you know, the Democrats have basically been arguing right in this case anyway, right, is is that the AUMF is what gives them the authority to use the military against Americans in the first place.
I guess my understanding was that rather than let that be tested in the Padilla case, they backed down and indicted him and didn't try it after all.
And yet that's kind of the same what they're doing now.
And by passing this amendment, they're sort of conceding and they're like ratifying that interpretation of the original authorization to use military force, that it includes the ability of the president to use the military to apprehend Americans.
Yeah, we're we're worried about what's implied, because it does seem to imply that that there is authority to operate, at least for some purposes, the military to operate in the United States.
And that was hardly settled before, right, that the AUMF granted that much authority.
Yeah, and I think and I think that you're right.
That's the question that the Supreme Court never got to because Jose Padilla and then later someone who's here on a student visa, Alamari, both had cases that were about to be argued to the Supreme Court on whether and how the AUMF applies, the authorization for use of military force applies in the United States.
And in both those cases, we felt pretty good that the Supreme Court was going to say, no, not here.
But both of them were charged before the Supreme Court was able to decide the case.
And so that ended both those cases.
But, you know, I also want to raise while we're on this NDAA, there's there's another kind of big issue that's looming out there that I'm sure your listeners are interested in.
That's part of the NDAA, which is there's been this, you know, problem that, you know, Congress first caused, but the president signed it.
So he's part of it, too, which has been for the last two NDAAs.
The president has signed into law restrictions on transferring people out of Guantanamo.
So, you know, the president made, of course, you know, when he's running for president the first time and then more recently on the on The Daily Show with Jon Stewart, made commitments to closing Guantanamo.
But he signed into law twice as part of NDAA's restrictions that have said that for the you know, for the following year, that it makes it almost impossible for anybody to be taken out of Guantanamo and sent back to their home, even if they're completely innocent or to be resettled in another country or to be tried in federal criminal courts here.
And so this isn't about releasing people onto American streets or anything else.
This is about just taking, you know, innocent people and sending them home, as President Bush very often did with hundreds of detainees or or putting them on trial in federal criminal courts that have a long record of trying terrorism suspects.
And so it's been blocked by two NDAAs in a row.
We're expecting that in this conference that's coming up in the next couple of days, that Congress is probably going to extend those restrictions out for another year, which means that, you know, President Obama really has a choice he has to make, and he has to make it basically now, like within the next week.
Is he going to be the president who who does everything he can to try to close Guantanamo, or is he going to be a president who, you know, year after year signs into law restrictions, blocking himself from from carrying out his his promise to close Guantanamo?
And it's really a choice point for the president, because if he if he says, I'm going to veto this and actually does it and says, you know, you send me you send me this crap that that, you know, is NDAA that say I can't close.
I can't transfer people out of Guantanamo.
If he actually vetoes it and then he can actually start the process of of how to close Guantanamo.
If he signs it, though, it means he's basically written off the first year of his second term.
He basically has written off basically all of 2013 to closing Guantanamo.
And it's and once he signs it again, Congress will send it back to him again next year, and it's just going to become harder and harder and harder.
So I think if he doesn't veto it this year, it's going to make it close to impossible for him to meet that promise.
And so, you know, one of the things that we've been urging is for people to contact members of Congress or I'm sorry, contact the White House and urge the president to stand up for his promise and close close Guantanamo and veto the NDAA.
And and this stuff with the Feinstein language and Ayotte Amendment and this habeas, you know, this misstatement of habeas rules, all this other stuff is probably going to be in the bill, too.
So there's lots of bad things in this NDAA.
And the president really should take a stand at this point and basically say no more.
I'm vetoing it.
I'm the president.
I have the power under the Constitution to veto it.
You don't listen to me.
You know, you know, I'm vetoing.
And it's a big deal for the president to do that.
But it really is time for him to stand up and take a stand on this.
Yeah, well, you know, good luck with that.
I certainly agree.
It'd be nice if people would make that a priority, holding him to his promise on that.
And I understand you're right that you were saying that these restrictions actually prevent anyone, no matter how clear they are, habeas corpus ruling or anything else, nobody can go home, whether they're Yemeni or whether they're anybody.
Yeah, I mean, this is, you know, here's another place, right, where Congress uses lots and lots of words, right, to achieve their result in a very kind of loopy way.
They set up a certification process.
Right.
And so that's actually what's in the bill is, you know, is that the defense secretary has to certify all kinds of things before anyone can go, go back home, even if they've been cleared by.
And actually, if anyone, anyone is cleared and over half the detainees at Guantanamo have been cleared, what cleared means is that the director of national intelligence, the secretary of state, the secretary of defense, the Justice Department, the Department of Homeland Security, basically every branch of government or every part of law enforcement and national security has signed off on them, has said that this person should be sent home.
There's no reason this person should be sitting at Guantanamo.
So it's not just some random decision somewhere.
This has been something that's exhaustively been reviewed and everyone, it's a unanimous agreement.
This person should go right.
So what they said, the certification requirements in a way that is so impossible to meet that after two years of the 80, 86 or 88 people at Guantanamo who are cleared for release, there hasn't been a single one who's been certified to be transferred home.
So it, you know, it doesn't look like, you know, you could look at it and you say, oh, no, it doesn't look like you're blocking anything from happening.
But in the real world, it's, it's been a, it's been a blockade on sending anybody home.
So you have people who have been, you know, who are innocent.
People have been picked up by mistake.
Chinese Uyghurs who are these, who are these, you know, religious minorities from China who have fled, fled the communists who are looking to persecute them.
And they were picked up because they happened to flee, flee across the border and found their way into, into Afghanistan at the beginning of the Afghanistan war.
And they were sold by warlords to the United States.
And, you know, these people haven't done anything wrong other than run away from communists.
And, you know, and they've been, they've been caught there.
We can't even transfer, transfer these people who have, you know, who are religious minorities, who is, who were only picked up because they, they were in the wrong place at the wrong time as they were fleeing communism.
That's, you know, that's the kind of craziness this is.
And so I think that's, and that's the, that's the kind of thing, you know, the president twice signed this into, into law.
They're trying to, you know, these are annual restrictions, which means every year they just expire unless they get renewed.
So the president really has a choice.
Like, is he going to sign this into law again, which basically is going to tie his own hands for another year?
Or is he going to finally stand up and say, you know, no, that's, you know, enough's enough.
I'm the president of the United States.
I make these decisions.
And, and I'm going to be able to start at least sending, you know, if nothing else, at least sending the innocent people on their way.
Well, and you know, part of this too, I don't know.
It seems like these guys, it's like a chief Wiggum on the Simpsons.
He says, you know, powerless to help you.
I'm not powerless to hurt you, persecute you and do whatever, you know, like that.
If Obama wanted to, he could order the military men at Guantanamo to close the prison and put those men on boats and start shipping them this way.
And what's the Congress going to do about it?
They could remove him from office, but he's the commander in chief.
He can order a war in Libya when they explicitly refuse to authorize it and nobody can stop him then.
But, oh, he just can't close this prison because he's such a weak, powerless article two president now, you know?
Well, you know, and, you know, those are certainly things that, you know, he could have tried.
But I think, you know, with this, with this chance now to veto, veto these restrictions and veto the NDA, he doesn't have to do anything extraordinary.
All he has to do is take out his veto pen.
You know, other presidents have done this.
Other presidents have done this for the past NDAs and just say, no, I veto it.
I'm sending it.
I'm, you know, this, this is getting, you know, this is getting into the trash pile and not into, into law.
And, you know, one of the things I think a lot of people have been very frustrated by has been, has been, you know, people in Congress have, you know, with Guantanamo point to the president and say, well, the president hasn't done enough to close Guantanamo and hasn't sent us up a plan.
And then meanwhile, the, the, the administration, the president point to Congress and say, well, Congress has tied, tied my hands.
Well, Congress has only, can only tie the president's hands if the president let them.
And so, you know, what he has to do now is basically say, like, you know, no, I'm done with you trying to tie my hands.
I'm not going to be part of this.
I'm not signing this.
You know, if you want to pass another NDAA, you take all this stuff out and you send me a good, new, clean bill without any of the Senate.
And, and that's the kind of thing that, you know, of his predecessors, President Carter, President Reagan, President Clinton, and President George W. Bush, each of them had, had done that with an NDAA at some point in their presidency.
And the part that's interesting, and I know you've worked a lot and talked a lot on the torture issue before, Scott, but one of the things that when, when George W. Bush vetoed the NDAA, here's the amazing story about that, right?
There was a provision that was put in by Congress into the NDAA in Bush's second to last year in, in, in office.
And what this, what it said was it said that people, including Americans who had been tortured by Saddam Hussein could sue the Iraqi government.
And, and Bush basically said, said, you know, no, Iraq is now our friend because Saddam Hussein is gone.
So we're going to, I'm going to veto that, the NDAA, until you remove the provision.
So he basically vetoed the NDAA to deny Americans the ability to sue the Iraqi government for being tortured by Saddam Hussein.
So, you know, if, if, you know, George Bush was able to- Well, he just really believes in the right of a sovereign to torture people, you know, even Saddam.
But, but, you know, I mean, there's a, there's a president who did what, you know, he was wrong about it, but in his view, he was right.
And so he vetoed the bill.
And, you know, and he didn't, I don't think there was a lot of hand-wringing going on over whether he should veto or not veto.
He got out his veto pen, he vetoed it.
And, you know, then Congress, you know, went back and they took the provision out and they passed the bill over again without, without the part that he didn't like.
And, and then he signed it.
This president could do the same thing.
And this is actually like, instead of doing something wrong, like Bush did, this would be doing something right.
And basically saying like, look, you know, you know, you want, you want an NDAA signed by me?
Well, then send me, send me something that I can sign, but I'm not going to sign something that keeps innocent people in prison potentially for the rest of their lives.
Yeah.
Well, unfortunately, I think we might as well be asking George W.
Bush to do something because it's right.
I mean, and in fact, look at the NDAA, you know, arrest you or me provisions from last year, Obama put a signing statement saying, Hey, look, you know, I don't ever want to use this against Americans or anything, but he fought for it in the Senate to make sure it was in there.
And he's been fighting in court for it this whole time.
So he has this whole thing about, oh yeah, I want to let all these innocent people sold to Donald Rumsfeld by Pakistani warlords back in 2001, as much as anyone, but he doesn't mean it.
He never does anything to do it.
But he gets to keep looking good.
Like, gee, he really wants to, if only the Republicans would let him.
You know, I, I think, you know, this really is, I mean, I think this really is a key decision point for the president.
And so it really is going to be, you know, there's been a lot written recently about, you know, what is, what is president Obama's legacy going to be?
And I think that there are some people in the white house and maybe the president himself who are thinking about that.
How does he want to be remembered?
Does he want to be remembered as someone who signed all this bad stuff into law and didn't get Guantanamo closed?
Or is he going to want to be remembered as someone who, you know, with Guantanamo, who maybe took a lot longer than it, than it could have taken.
Maybe there were some missteps, but at the end of the day, he closed it.
That, that's really what's on the, at stake here.
And, and, um, and I think there are some people in the white house right now who realize it and, you know, hearing from, you know, the white house hearing by either email or, or phone calls, um, that, that they want this NDA a vetoed, um, is really going to be important because there are, there are some good people in the white house who are making that argument right now.
Um, and that this is what the president should be doing.
And of course there are others who, you know, I'm sure who are, who are arguing the president should just continue signing whatever the Congress, um, sends him, no matter how bad it is.
So, you know, it really is a, a chance for, you know, for people to, to say, you know, Mr. President, this really is a time to make a stand on this.
And, you know, you want your legacy to be a good legacy.
Well, you know, you're going to have to veto this NDA.
All right.
Well, I'm with you and I hope people will, uh, pick up on that cue and, and at least make their phone call, send their email.
Um, I've, I guess I've heard rumors that if you send in an old fashioned telegram or a fax, those are old fashioned now too.
Uh, those count a little bit more because they take up physical space in politicians offices.
And so maybe, I think that's right.
You know, it's, it's, uh, you know, the more, the, the more different ways you try to get in the door, um, you know, or get, get something in front of them, the better off you are.
And, um, no one sends regular letters anymore.
And I wouldn't recommend that here because it's moving too quickly.
It's moving in the next couple of days.
Um, but you know, yeah, I think, you know, whether it's telegram or faxing something off or, you know, emailing telephone calls, I mean, all those things I think are, are ways to reach out and try to get them to pay attention or, or, you know, for people that have their own, their own blogs or their own outreach, I mean, you know, reach out to, um, others on, on through your own social media, I think is a really good idea too.
Right.
And all the other independent groups out there, um, you know, having their own official position on this and speaking as groups.
I represent these 700 people and we all say it's like that's worth a little bit extra.
So hope people will take your advice there.
All right.
Thank you so much for your time.
As always, Chris, great to talk to you.
Okay.
Thank you.
Bye-bye everybody.
That's Christopher Anders.
He is the legislative counsel for the ACLU in Washington, DC.
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