All right, y'all, welcome back to the show.
It's anti-war radio.
I'm Scott Horton and our next guest on the show today is Christopher Anders, senior legislative counsel at the ACLU's Washington Legislative Office.
Welcome back to the show.
Chris, how are you doing?
Good.
How are you?
I'm doing great.
Appreciate you joining us today.
Thank you.
A very important story here.
Um, and I forget if this is one that we talked about last time or not, but we've been talking about it for a while.
I guess I was sort of hoping this thing had died in committee somewhere, but apparently not, uh, at ACLU.org/blog.
Senators demand the military lock up American citizens in a battlefield that they define as being right outside your window.
Well, that's a hell of a headline.
Why don't you go ahead and give us a rundown of this bill and where it is in the U.S.
Congress right now, please.
Well, this, this bill is actually on the Senate floor right now.
And, uh, we'll be, uh, for most of the rest of this week.
Um, and so it's a defense authorization bill.
It's a bill that Congress usually passes every year.
Um, it has for a long time.
Uh, there's a lot of pressure to get the bill through.
It doesn't have to pass.
Uh, there's a lot of pressure to have it pass.
And what's taking a free ride on this bill is our detention provisions that, uh, would put in indefinite detention without charge or trial in military detention without charge or trial, um, United States citizens and anybody else picked up anywhere around the world who's suspected of having a relationship with, um, with anyone involved in terrorism.
And so, and it, which is a very, very broad definition.
It doesn't require proof beyond a reasonable doubt.
Uh, it doesn't require a trial.
Um, it doesn't, it doesn't put someone in civilian custody.
It's putting people into military custody, military detention, potentially for the rest of their lives without ever seeing the inside of a courtroom.
And now it would turn them over to the Guantanamo system of justice or some sort of old idea of court martial that used to exist under the law.
No, it doesn't have, it doesn't have to, it basically gives, it gives four choices, um, under the bill.
So one choice would be, they could be put into a civilian trial, into a regular criminal court.
They could be put in front of a military commission, but remember for United States citizens, United States citizens can't be tried in front of the military commission.
Um, so the trials they're going to Guantanamo can't be used for US citizens.
Oh, because that's where it says in the military commissions act of 2009.
That's right.
But, but what instead, what could be done with the United States citizens is it could be held in indefinite detention without charge or trial, uh, under a, what's called a law of war theory, which is basically, well, we're at war with, with terrorism and terrorists.
So therefore we can lock these people up, um, without, without having to charge them with a crime.
So it's kind of, it's similar to kind of how you would have a, a prisoner of war in a traditional war who hasn't committed a crime, um, but we're locking the per person up until the end of the war, right?
But, but this is, this is taking it and, and perverting the whole thing.
Um, and using it a different way to say, well, we're going to take this person kind of as a prisoner of war and hold him or her without ever charging them with a crime and hold them to the end of, end of this conflict and this conflict they define very broadly to mean, to mean, you know, this, uh, to the end of, end of, uh, basically the end of terrorism, um, you know, which may or may not happen, so.
Right.
Well, okay.
So Jose Padilla was an American citizen.
He was arrested by FBI agents.
I assume wearing parkas, not fatigues at O'Hare airport in Chicago.
He was for a short time detained in the regular court system and then was turned over to, I guess, Donald Rumsfeld and George Tenet's custody at a brig in Charleston, South Carolina.
And then the court, I think, ducked the Padilla issue once or twice on a technical grounds.
But finally, his case was coming for review by the U S Supreme court.
And at that point, the Bush administration went out and they went ahead and indicted him in Miami, which to read the indictment is to laugh out loud.
But anyway, they got these 12 yahoos to throw him in prison and, uh, as though he hadn't already done his time.
Um, and, uh, but now here's the question and I'm sorry if I'm asking you to speculate as to the Republican's position on this, but I'm just not sure how else to phrase it was the Bush administration.
Do you think worried that the, that the Supreme court would say, no way, you just can't do that to an American citizen because of the fifth amendment.
Or were they more narrowly worried that they would say, you need Congress to pass a law first that the president himself can't do it because otherwise this looks like it's going to run into the exact same Supreme court opposition that George Bush was worried about when he backed down and it went ahead and indicted Padilla.
What am I missing?
Yeah, here, well, here's the, here's the, here's the trick.
I realized it was getting kind of into the legal weeds, right?
But I think this is important.
Yeah.
In 1971, Congress passed and president Nixon of all people signed what's called the non detention act of 1971.
It was something that Japanese American citizens league had pushed hard for to make sure that nobody else would, would have to experience what they experienced.
And it's a simple one sentence statute that says, it says, uh, no United States citizen can be, um, in prison, uh, by the federal government unless Congress authorizes it.
And so it's basically a never again, act never again.
Will we have, you know, the kinds of concentration camps that were built for Japanese Americans who are not never charged with any crimes.
Right.
Um, and so the Jose Padilla to kind of fast forward, Jose Padilla, when he was, when he was held the United States citizen picked up in the United States was being held as a enemy combatant without being charged with a crime.
One of the arguments he was planning on making and was in his brief to the Supreme court was, was that the non detention act in 1971 protected him.
The Congress had never authorized that the detention of United States citizens picked up in the United States, um, and indefinite detention without charge.
And, uh, it certainly, I was one of his, one of the strongest arguments that he could have made to the court.
If this, if this becomes law, that argument's wiped out because what, what that, because this is, this is this legislation that's on the Senate floor.
Now, what it says is, is that, is that people can be detained without, without charge or trial.
Um, and, and I'm sorry.
I know this sounds just doe eyed, naive and innocent and ridiculous, but article one, section nine forbids the removal of the rate of habeas corpus for Americans, unless there's an insurrection or rebellion.
And the fifth amendment forbids the deprivation of any U S person, citizen or not, uh, in the, in the executive hands of this government from being deprived of their life or their liberty without due process of law.
And that, and those are all arguments that would have to be made to the court.
And those are all arguments that I'm sure would be made to the court.
But, but if you look at Jose Padilla, the top, from the time that he was picked up initially until the time the Supreme court was ready to hear his case was almost four years.
So in the meantime, you know, those arguments might very well work.
We certainly would hope that, that the Supreme court would find that this is also unconstitutional.
Um, but in the meantime, you could have people who are sitting in prison for three or four years waiting for the court to decide that question.
And, and, and, you know, and the other concern that we have is, you know, hate, you know, habeas corpus is not, is not a detention authority statute.
It doesn't say what the authority is or isn't what it does is it basically says that you have a right to go into court and have a court make a determination as to whether you're being detained lawfully or not lawfully.
And so it's not, it doesn't give a, there's not an underlying right to be detained or not to be detained.
It's to have a judge make the decision of, you know, is this lawful or not lawful.
Now we would use that, that's old law.
Does it count?
Well, no, that's, that's, uh, that's, uh, certainly a great protection, um, which is, you know, is passed for people who don't know, is passed almost 140 years ago and, um, and basically it says that the military can't be used to carry out law enforcement functions within the United States, but there again, it's a little bit like the non-detention act of 1971.
It's a statute, so it's a statutory protection.
So Congress can always cut back its protections.
It's not a constitutional issue.
It's not a constitutional amendment.
Right.
Um, and, and this, of course, would cut back in the posse comitatus act protection.
All right.
Well, we're going to have to hold it right there and take this break.
We'll be right back.
Everybody with Chris Anders from the ACLU right after this.
All right, y'all.
Welcome back to the show.
Santi war radio.
I'm Scott Horton.
I'm talking with Chris Anders.
He is the senior legislative counsel for the ACLU in Washington, DC, and his latest and possibly most important subject ever written about ever is this piece here, senators demand the military lock up American citizens in a battlefield they define as being right outside your window.
And now, um, here's the thing, uh, you look at the Patriot act, for example, there was a thing done by, I believe it was the economist that had a chart about all the Patriot act abuse and its use against people in non-terrorism cases all over the place, uh, as in a different from their promise.
Uh, there was a couple of senators who talked about, oh, you don't even know there's a secret interpretation of the Patriot act that's being used in ways that the Congress people who voted for it never would have gone along with.
I don't know about that, but anyway, that's what they said.
Um, and of course, um, Robert Mueller has admitted that they abused their national security letter power.
And these cops just go around writing warrants for themselves all the time.
Uh, doing whatever they want, abusing the Patriot act.
And so you apply that same kind of principle of them using the Patriot act as a floor, not a ceiling on their power.
And then you apply that same kind of principle to this power of, uh, of the Congress, I guess, to mandate, um, in most cases that the FBI, whenever they're done entrapping some idiot into saying that he's loyal to Al Qaeda now or whatever, turn those entrapped people over to the military to hold from now on.
How long is it going to be before the ACLU?
Cause we all know that you guys are always on the side of the terrorists and the commies and whatever, according to right-wing talking points.
How long before you guys, by trying to represent these people are providing material support to, I don't know.
And we're all lucky by helping his dad Sue over his right to not be assassinated, for example.
I'm not trying to be too hyperbolic here, but a little bit.
Cause I, I, well, basically I want you to walk it back for me and tell me not that I'm overreacting here.
Well, I, I think, you know, that, that is the problem.
I mean, I, and I think, you know, overreacting is, is, you know, I think it's probably impossible on this because there are two things I want is we know the government makes mistakes and, and even, even when well-intentioned and try and do a good job, they make mistakes.
And that's why, and there are people of course, who, you know, who do get charged with crimes that they didn't commit and, and juries find that they're And, uh, and, and so that happens.
And then there are certainly instances where the government takes the power and does not use it wisely.
And, uh, and, and after nine 11, there were over 1200 people with Muslim and Arab backgrounds, um, who were picked up by the FBI based on, based on tips given to them by neighbors and, uh, coworkers and friends, um, and out of more than 1200 people that were picked up that way, it wasn't a single one who was ever charged with a terrorism related offense.
Um, but some of those people were held for months at a time under what a different statute called the material witness statute was also being misused.
Um, and, and it was so bad that, that the justice department's own inspector general ended up writing a report, slamming the justice department forever having done it.
Um, now what would happen?
The only difference with this bill now is that is that instead of people being held, picked up in some roundup like this and being held, being held for maybe a few months, they could be held potentially for the rest of their lives without ever seeing the inside of a courtroom, without ever, without ever being charged with a crime, without ever having a jury make, make a decision on whether the person is guilty or innocent.
And certainly, you know, this definition in section 10 31 of the bill on who it is, who the military can detain is so broad that it includes support for people involved in terrorism.
So it doesn't mean that you've ever picked up a gun.
It doesn't mean that you're fighting anybody anywhere.
It can mean, it can mean writing a check, um, to someone who you think is a charity, you think someone who is someone who's doing good work.
Um, it could mean, it could mean being right in check to a relative.
Um, it could, you know, could mean helping somebody, helping somebody come back from a trip overseas who might be a friend or a coworker or a relative.
And, and you may be unaware that they have any relationship to any other terrorists, any terrorists anywhere.
And you would be able to, in a court of law, you would be able to make that out that case, you'd be able to say, you don't know, this is, this is really what happened.
And a judge and jury would make a decision on whether you actually committed a crime or not.
But that takes, but that's not all that.
That's not what happens here.
What happens here with this bill is, is it's based on suspicion alone.
It's based on the government say so the president say so, or the secretary of defense say so, or some government bureaucrats say so that they believe that you did something that you did something wrong.
And, and then based on that, they can put you into a military prison and good luck getting out because it's, it would, it would mean, you know, it would mean a very long fight as you, as you suggested under, you know, if you're lucky enough to, to be an American citizen or be picked up within the United States, you would have habeas rights to have a court make the one, make a decision on whether you're being legally held or not.
And then all they need is the barest indication that you may have done something in order to pass the habeas hurdle anyway.
Yeah.
The, the, at Guantanamo, you know, lots of people, it's not, the, the requirement is not that proof beyond a reasonable doubt.
It's, it's basically, they have to have, the government has to have enough that to make out a credible argument.
Yeah.
It's not even a probable cause or object of belief.
Yeah.
Yeah.
And, and, and then the standard that they would have to meet is, is, you know, is there enough to show that you, you provided support?
So these are all questions that I think would end up, they're all kind of interesting, you know, kind of legal questions and it would be, you know, certainly challenging things, but in the meantime, you'd have real people sitting in real prisons under military, under military rule, um, trying to, trying to fight their way out and potentially being caught in that military, in these military prisons for, for years at a time.
Yeah.
And then we got the Roberts court as the only backstop against all this.
And the crazy, the craziest part of the whole thing is, is that, is that you don't have to, on this issue, you don't have to listen to the ACLU or human rights groups or the American Bar Association or anybody else, the secretary of defense, Leon Panetta, wrote a letter to the Senate saying that he opposes the, these provisions.
Um, he, he believes this is the wrong way to go.
I wanted to ask you a little bit about the possibility of an Obama veto on this.
And I, it's not because I'm naive on this, but I did hear a little bit of a debate about the politics where Senator Levin said that he got a letter or a message or something from the white house saying, Hey, put in a waiver here where the president doesn't have to turn over one of these entrapped victims of the FBI or, or whoever to the military, if he doesn't want to.
And so Levin said, so we did that.
And then they got another message from the white house saying, no, you know, we don't want to pass this unless it says that the president can have a waiver.
And Levin was frustrated and saying, I don't understand why you're still saying to make the change that we already made.
And it, I, it made me a tiny bit hopeful that the Obama administration had drawn a line and they just decided they were going to veto this maybe.
Well, it's, it's actually, it's actually beyond that.
I, and Senator Levin certainly knows that, that, that at the, at the very time that he was, he was doing his secret closed markup almost two weeks ago, um, behind closed doors, uh, secretary Panetta, the secretary of defense sent a letter, which, uh, which they were racing to get to the committee in time saying that, saying that the secretary of defense opposes these provisions and then a day or two later, um, the white house put out what's called a statement of administration policy, which is, which is the way that the white house communicates formally with Congress on bills.
And in it, they discuss the detention provisions and it finishes by saying that the, that if they stay in the president's advisors will, will recommend that he vetoed legislation and that's, that's the official way that a veto threat is communicated.
Then, then, uh, uh, just to make the point even clearer, um, the director of national intelligence, um, who oversees not just the CIA, the national security agency, but every intelligence part of the United States government.
So he's, you know, he's the, he is the top intelligence official for the federal government, general Clapper, James Clapper sent a note the day before Thanksgiving, uh, sent a letter to the Senate saying that, that he opposes and wants to make clear that these are, that this is bad, not only is it bad for, um, due process and the protections that everyone in the United States values so much, um, but that this is also bad counter-terrorism policy.
All right.
Now that's great, but we're not going to count on that.
I believe that you at the ACLU, you need help in the Congress.
So it never even gets to the president's desk.
Tell people how they can help quickly.
So what you should do right now, you can go to the ACLU's website and find a link for this issue.
And it'll let, it'll let you send an email to your senators.
So it's the Udall amendment undoes this, right?
The Udall amendment undoes it, or you can call your senators and, and you know, the, the amazing thing on this is, is that really until they came back today from their Thanksgiving break, most senators were not focused on this issue.
All right.
That's Chris Anders, ACLU.org.
Thanks so much, Chris.
Great.
Thank you.
