Home US & World News COMMENTARY: Levin-McCain 'sets the stage for martial law in the United States'

COMMENTARY: Levin-McCain 'sets the stage for martial law in the United States'

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Justin Raimondo sounded the tocsin on Tuesday.  --  "Buried in the annual defense appropriations bill is a provision that would give the President the power to use the military to intern anyone -- including American citizens -- indefinitely, and hold them without charges or trial, anywhere in the world, including on American soil.  The provision essentially repeals the longstanding Posse Comitatus Act, which prevents the military from engaging in law enforcement on U.S. territory -- the greatest fear of the Founders.  Approved by a Senate subcommittee in secret hearings, the provisions open the road to a military dictatorship in this country -- and for that we can thank Senators Carl Levin and John McCain, who introduced the measure.  Both the FBI and the Pentagon came out against the Levin-McCain monstrosity, and Senator Mark Udall (D-Colorado) introduced an amendment striking the provision:  the amendment was defeated in the Senate, 37-61.  The mind reels."[1]  --  The ACLU lamented the failure of the amendment.[2]  --  A New York Times blog gave an account of the legislative debate on the matter.[3]  --  Writing on Truthout, Ralph Lopez proposed that "McCain and Levin have betrayed their primary oath of office to 'protect, uphold and defend the United States Constitution against all enemies both foreign and domestic" and said that "it is incumbent upon loyal senators to declare treason within their midst, and to direct the Sergeant at Arms to effect the arrest of John McCain and Carl Levin as such domestic enemies."[4] ...

1.

SETTING THE TRAP

By Justin Raimondo

** Levin-McCain bill would create a presidential dictatorship.  Where is the outrage? **

Antiwar.com
November 30, 2011

http://original.antiwar.com/justin/2011/11/29/setting-the-trap/
(see original for additional links)

Buried in the annual defense appropriations bill is a provision that would give the President the power to use the military to intern anyone -- including American citizens -- indefinitely, and hold them without charges or trial, anywhere in the world, including on American soil.  The provision essentially repeals the longstanding Posse Comitatus Act, which prevents the military from engaging in law enforcement on U.S. territory -- the greatest fear of the Founders.  Approved by a Senate subcommittee in secret hearings, the provisions open the road to a military dictatorship in this country -- and for that we can thank Senators Carl Levin and John McCain, who introduced the measure.  Both the FBI and the Pentagon came out against the Levin-McCain monstrosity, and Senator Mark Udall (D-Colorado) introduced an amendment striking the provision:  the amendment was defeated in the Senate, 37-61.

The mind reels.  As the ACLU’s Chris Anders puts it:

“I know it sounds incredible.  New powers to use the military worldwide, even within the United States?  Hasn’t anyone told the Senate that Osama bin Laden is dead, that the president is pulling all of the combat troops out of Iraq and trying to figure out how to get combat troops out of Afghanistan too?  And American citizens and people picked up on American or Canadian or British streets being sent to military prisons indefinitely without even being charged with a crime.  Really?  Does anyone think this is a good idea?  And why now?”

Why now, indeed -- and the answer is not hard to fathom.  With the U.S. banking system making very loud creaking noises as the eurozone descends into the economic abyss, and a total meltdown staring us in the face, the Powers That Be want to make sure they have their hands on the reins of power -- and on the whip they won’t hesitate to use.

Sen. Lindsey Graham (R-SC) exults that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and anyone can be imprisoned without charge or trial “American citizen or not.”  Graham doesn’t care about any of that sissy constitutional stuff, and never did -- throw ‘em in the brig!  Sen. Kelly Ayotte, a Republican from the “Live Free or Die” state, doesn’t care that she’s destroying the American republic and our constitutional liberties by voting for this draconian measure because, she says, “America is part of the battlefield.”

Nothing illustrates the longstanding warning from antiwar advocates that “war is the health of the state” than this ominous development.  The principle that war leads inevitably to the erosion and eventual destruction of our constitutional form of government is being dramatized on the floor of Congress even as I write these words.  At the Republican foreign policy debate held recently, Professor Gingrich lectured us on “the difference between national security requirements and criminal law requirements,” and, drawing on this spurious distinction, averred:  "All of us will be in danger for the rest of our lives.  This is not going to end in the short run.  And we need to be prepared to protect ourselves from those who, if they could, would not just kill us individually, but would take out entire cities.”

For the rest of our lives we’ll be in thrall to Gingrich, Graham, Levin, and the rest of them, on the pretext that we’re about to be nuked by a bunch of marginal fanatics hiding in a cave somewhere.  It’s a thin rationale indeed for setting the stage for martial law in the United States, but it couldn’t have come at a more convenient time for our rulers, as they face the prospect of civil disorder in the face of economic collapse.

That the authoritarian strain in American politics is coming to the fore in this time of crisis should come as no surprise.  Backed up against a wall, the ruling elite is baring its teeth, and the Constitution -- which has long been a mere piece of moldering parchment rather than the law of the land -- is easily disposed of.  Our cowardly Congress, which lives only to advance special interests and line its own pockets, is hardly a bulwark against this onslaught:  indeed, they are the source of it.

So where are the Tea Partiers, who warn against “Big Government” and denounce “RINOs” like Sen. Graham who don’t share their aversion to centralized authority?  They’re busy campaigning for Gingrich, the “true conservative” and $1.6 million Fannie Mae “consultant,” who preaches the virtues of endless war.  Besides, the Levin-McCain provisions will only be used against them damned Mooslims -- right?

Wrong -- but by the time these “patriots” realize how wrong they are, it’ll be too late.  As Rep. Justin Amash, one of the few congressmen elected on the Tea Party wave who has a conscience (and a brain), put it, this bill, which is “carefully crafted to mislead the public,” is one of the most “anti-liberty pieces of legislation in our lifetime.”

As the economy collapses -- say, around next week sometime -- and as people line up at the banks to get their money out, and discover the till is empty, as the food distribution system breaks down, and the mobs gather and swell, they’ll call the army out into the streets to keep order.  And it will all be perfectly “legal.”

Don’t tell me our sainted solons are cringing in fear of al-Qaeda, which is by now a mere shadow of a shadow:  the real object of their fear is the American people -- and they have every reason to be afraid.

The “debate” in Congress over the Levin-McCain provisions is not really what it appears to be, as Marcy Wheeler points out in some depth.  On the Senate floor, opponents of the provision, such as Dianne Feinstein, mentioned the dangers of the army patrolling the streets of American cities only in passing, if at all:  their real objection is that the provisions impede the really existing “war on terrorism.”  Wheeler argues that the Obama administration would be constrained from utilizing its network of informants if detainees were handled by the military.  As she puts it:  “Again, I suspect that’s the Administration objection.  It allows them to do these things.  But requires they do them with a paper trail Congress can audit.  In short, it’s a future Fast and Furious scandal, the guaranteed exposure of all of their harebrained undercover operations, waiting to happen.”

The administration’s veto threat has nothing to do with protecting civil liberties: indeed, quite the opposite.  As Sen. Levin noted in his remarks, a bit of politicking went on at the secret Senate hearing:  "The initial bill reported by the committee included language expressly precluding ‘the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.’  The Administration asked that this language be removed from the bill.”

The real purpose of the Levin-McCain provisions is entirely unrelated to “terrorism,” either by al-Qaeda or any known domestic outfit.  It was put in there to codify a number of important “legal” precedents, which make it possible for the President to declare an American citizen an “enemy combatant” and hold him or her indefinitely without charges.  This is the final step in a process that will enable the President to establish a de facto military dictatorship:  it’s the “unitary presidency” meets the global economic crisis.

“America is part of the battlefield,” says Sen. Ayotte, quite accurately -- and Americans are the target.  Resistance is “terrorism”: dissent is a crime, and you’d better shut up and take it if you know what’s good for you.  That’s the message they’re sending -- and how, one wonders, will Americans respond?

Tryptophaned into a submissive lethargy by large doses of turkey and stuffing, and living in constant fear of imminent destitution, they hardly notice this historic betrayal.  The trap is set, baited, and ready to spring: one has to wonder, however, if this passivity will hold once those steel jaws bite.  I bet they’re wondering in Washington, too.

2.

SENATE REJECTS AMENDMENT BANNING INDEFINITE DETENTION


ACLU
November 29, 2011

http://www.aclu.org/blog/national-security/senate-rejects-amendment-banning-indefinite-detention

Today, the Senate voted 37-61 to reject an important amendment to the National Defense Authorization Act (NDAA) that would have removed harmful provisions authorizing the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world.  The amendment offered by Sen. Mark Udall (D-Colo.), would have replaced those provisions with a requirement for an orderly congressional review of detention power.

The Secretary of Defense, the Director of National Intelligence, the Director of the FBI and the head of the Justice Department’s National Security Division have all said that the indefinite detention provisions in the NDAA are harmful and counterproductive, and the White House has issued a veto threat over the provisions.

We’re disappointed that, despite robust opposition to the harmful detention legislation from virtually the entire national security leadership of the government, the Senate said ‘no’ to the Udall amendment and ‘yes’ to indefinite detention without charge or trial.

The next opportunity to remove the harmful detention provisions from the bill will be when House and Senate conferees meet in conference committee next week.

If the conference committee fails to remove the detention provisions, President Obama should follow through with his veto threat.  Today’s vote on the Udall amendment shows there’s more than enough opposition to these provisions to sustain a veto.  Stay tuned for more information.

3.

[Blog]

The Caucus

LEVIN AND McCAIN STRIKE DEAL OVER DETAINEE HANDLING

By Charlie Savage

New York Times

November 15, 2011

http://thecaucus.blogs.nytimes.com/2011/11/15/levin-and-mccain-strike-deal-over-detainee-handling/?scp=2&sq=%22indefinite%20detention%22&st=cse


7:50 p.m. | Updated -- A highly charged political dispute over the handling of terrorism detainees is taking a turn:  the top Democrat and Republican on the Senate Armed Services Committee have reached a tentative agreement on a proposal.  But their deal cut out the White House and could provoke a rebellion by other Senate Democrats.

The committee is set to meet behind closed doors this afternoon to discuss -- and possibly vote on -- the deal made between its Democratic chairman, Senator Carl Levin of Michigan, and its ranking Republican, Senator John McCain of Arizona.  It would modify several disputed provisions of the National Defense Authorization Act of 2012, which the panel approved in June.

Among other things, the committee -- whose lineup makes it more dominated by conservatives than the whole chamber -- proposed mandating military custody for noncitizen members of Al Qaeda or its allies accused of plotting attacks, even those arrested on American soil.  It has also proposed a new statute authorizing the indefinite detention without trial of terrorism suspects.

The provisions have proved controversial.  The chairmen of the intelligence and judiciary committees as well as other Senate Democrats have asked for the mandatory military custody provision to be removed, and the Obama administration has strongly objected to it, saying that only civilian law enforcement agencies, not the military, should operate on domestic soil.

Senate Majority Leader Harry Reid, Democrat of Nevada, had initially delayed bringing the defense authorization act to the floor, saying he wanted the dispute over the detainee provisions resolved first.  More recently, though, Mr. Reid has indicated that he wants the Senate to vote on the bill soon.

The deal by Mr. Levin and Mr. McCain is apparently aimed at doing enough that Mr. Reid will allow a floor vote on the overall bill.  Their draft was being closely held, and the proposed changes were described by people familiar with them on condition of anonymity.  The agreement was struck on Monday without administration officials at the table.

Among the changes:  a section affirming that the United States government can hold terrorism suspects without trial would delete a paragraph saying that it does not apply to citizens or lawful residents for their actions on domestic soil “except to the extent permitted by the Constitution of the United States.”  Instead, it would be silent on whether or not such Americans can be held without trial.

The draft would also delete language imposing a potential limit on that detention authority:  that the person must have been “captured in the course of hostilities.”  The Defense Department had objected that such language might call into question whether it could detain Qaeda suspects who were captured far from the so-called “hot battlefield” of Afghanistan, and who were not accused of taking part in specific plots.

A section that would mandate military custody for noncitizen terrorism suspects is said to have been modified to add in that it does not apply to lawful residents, either, but that it does apply to people “captured in the course of hostilities.”  The people describing the provision said it was ambiguous how that could be interpreted -- including whether people “arrested” inside the United States would count.

The military custody provision would also be changed to instruct the government to issue regulations to prevent the disruption of interrogations.  One of the criticisms of the original version is that it might require the Federal Bureau of Investigation to stop questioning a suspect as soon as it became clear that he were likely part of Al Qaeda, because the bureau would have to turn custody of him over to the military.

The deal is also said to impose a “sunset” clause on restrictions against transferring detainees out of the Guantánamo prison.  If it became law, the restrictions would expire at the end of the 2012 fiscal year, next September, unless Congress passed new legislation to extend them.

The political questions now are whether those modifications, should they clear the committee, would be enough to convince Mr. Reid to allow the legislation to be brought to the floor, and whether the White House would threaten to veto the entire bill over its remaining objections to the detainee provisions.

UPDATE: 
The Senate Armed Services Committee, meeting behind closed doors this afternoon, approved the language of the Levin-McCain deal.  Here is a summary the panel produced of the revised sections of the statute, and here is the text of the revised section on mandatory military custody.

UPDATE: The Pentagon and other leading Senate Democrats swiftly condemned the Levin-McCain deal on Tuesday night, raising questions about its political viability.

In a two-page letter to Mr. Levin, Mr. Panetta said that even with the changes, the legislation would harm national security by “needlessly” tying the hands of security professionals.

Among other things, Mr. Panetta complained that the revised mandatory military custody could force the government to obey the same strict limits on transferring Guantanamo detainees to other countries -- which the administration wants lifted -- when dealing with terrorism prisoners held in other prisons.

And in a joint statement, Senators Dianne Feinstein of California and Patrick Leahy of Vermont -- the chairs of the intelligence and Judiciary committees -- sharply criticized the deal, complaining that their panels had not been consulted even though they have “primary jurisdiction over terrorism matters.”

“Regrettably, the so-called ‘agreement’ reached today in the Senate Armed Services Committee will only harm the efforts of intelligence and law enforcement officials to bring to justice those who would harm Americans here and abroad,” Mr. Leahy and Ms. Feinstein said.  “We have said before that these proposals are unwise, and will harm our national security.  That is as true today as it ever has been.”

A Senate Armed Services Committee statement announcing the revisions to the legislation touted the aspects of the bill that addressed some of the Obama administration’s concerns, but acknowledged that the executive branch still disagreed with parts of it.

“The Administration agreed to have military custody apply to al Qaeda members captured outside the United States (subject to a national security waiver) but disagrees with the committee decision not to preclude the application of the provision inside the United States,” the committee statement said.

Mr. Levin, Mr. McCain, and Senator Kelly Ayotte, Republican of New Hampshire, issued their own joint statement portraying the revised detainee policy provisions as a “compromise” that was “intended to address objections made by the administration.”

The statement emphasized that the provisions do not apply to United States citizens, noted that the final vote to move the entire bill out of committee had been unanimous, and said they looked “forward to debating these vital issues on the floor of the Senate” when the bill “comes up for consideration as early as this week.”

4.

ARREST McCAIN AND LEVIN NOW.  SENATE TO VOTE ON MILITARY DETENTION OF AMERICANS
By Ralph Lopez

Truthout
November 29, 2011

http://www.truth-out.org/arrest-mccain-and-levin-now-senate-vote-military-detention-americans/1322601515

Why would Founders create a class of criminal, "domestic enemies" of the "United States Constitution," if there were no such thing?

If you think soldiers won't do it, think again.  Some of the stupidest people on Earth join the Army, and they, in contrast to the many intelligent young patriots who join for the right reasons, will always be there.  Reading blogs arguing about Posse Comitatus and martial law I've seen comments like "I expect I might be picking a few civvies (civilians) off the wire someday . . . but I like my home on base and my kids need the nice playground.  Life is good."

I also have close relatives in.  I couldn't make this up.

Now Chris Anders, Legislative Counsel for the ACLU writes:  "The bill was drafted in secret by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.) and passed in a closed-door committee meeting, without even a single hearing. . . ."

Anders warns us that the worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday (today) for the beginning of debate.  "The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield -- even people in the United States itself.  Senators need to hear from you, on whether you think your front yard is part of a 'battlefield' and if any president can send the military anywhere in the world to imprison civilians without charge or trial."

In an unusual closing of ranks, many conservative websites have picked up and run the ACLU Alert either verbatim or as part of their own action alerts.  ConservativeByte.com in "Senate Moves To Allow Military To Arrest Americans Without Charge Or Trial" writes:  "The Senate is set to vote on a bill today that would define the whole of the United States as a 'battlefield' and allow the U.S. Military to arrest American citizens in their own back yard without charge or trial."

Translation:  this is not a liberal or conservative thing.  This is an American thing.

In support of the bill, Sen. Lindsey Graham (R-S.C.) said that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.”   Sen. Kelly Ayotte (R-N.H.) declared that the bill is needed because “America is part of the battlefield.”

Anders in his legislative alert asks a good question:  Why now?  "Hasn’t anyone told the Senate that Osama bin Laden is dead, that the president is pulling all of the combat troops out of Iraq and trying to figure out how to get combat troops out of Afghanistan, too?  And American citizens and people picked up on American or Canadian or British streets being sent to military prisons indefinitely without even being charged with a crime.  Really?  Does anyone think this is a good idea?  And why now?"

Although Obama has threatened to veto the bill over the provision, this is not the first time McCain has revealed his totalitarian, un-American impulses.  Last year he was lead sponsor S. 3081 which outlined the process by which Americans may be held indefinitely, without notice of their Miranda Rights, and without ever being charged with a crime, after being arrested in their own country.  Due to popular outcry, the bill never became law. 

What today's action tells us is that this was not a one-off by McCain and whatever anti-Constitution gang he can round up at the moment.  He will keep trying until this president or another one signs it.  The ACLU is recommending people lobby their senators to support the Udall Amendment which will delete the harmful provisions and replace them with a "requirement for an orderly Congressional review of detention power."

I have a better idea.  In crafting this backroom deal and attempting to form what amounts to an anti-Constitution faction, McCain and Levin have betrayed their primary oath of office to "protect, uphold and defend the United States Constitution against all enemies both foreign and domestic."

Although the Bill of Rights has been steadily eroded since the arrest of American citizen Jose Padilla as an "enemy combatant" by the Bush administration, Bush released him to a civilian trial just before his detention was properly tested in the Supreme Court, after being upheld in the Fourth Circuit.  The test would have been whether "enemy combatant" or any other abrogation of the Bill of Rights which applied to traditional war could apply in the first open-ended "war" from which, as the "enemy" is a loose network rather than a hierarchy, there is no one from whom to accept surrender.  Thus the question has been left open, until this attempt to codify what is in essence flatly unconstitutional.

At his trial none of the original plots alleged by the government against Padilla, such as a plan to blow up a "dirty bomb" in New York or blow up apartments using gas lines, were ever mentioned.   He was convicted mainly on the strength of an Al-Qaeda "application form" which included a line for "emergency contact."  Not only would this laughable measure point an incriminating finger at whomever was listed, it flies in the face of interviews with Jihadis who say when you go to Jihad, if you tell your family anything, you tell them only that you will not be coming back.

Interestingly, the attorney for another terrorism suspect,  Binyam Mohamed, said that during his imprisonment in CIA "black box" prisons, he was told that he would be implicating people such as Padilla, under torture, which included slicing his genitals with razor blades.  Attorney Clive Stafford Smith said his client told him:  "Some of the time they said that some big people in al-Qaeda were talking about me.  Some of the time they told me that the U.S. had a story they wanted from me and it was their job to get it.  They talked about Jose Padilla and they said I was going to testify against him and big people.  They named Khalid Sheikh Mohammed, Abu Zubaydah and Ibn Sheikh al-Libi.  I was meant to be working with these people, giving them ideas like the dirty bomb.  It is hard to pin down the exact story, because what they wanted changed all the time.  First in Morocco it changed, then when I was in the Dark Prison, then in Bagram and again in Guantanamo Bay."

Smith explains this in his book The Eight O'Clock Ferry to the Windward Side.  Andy Worthington writes:  "The U.S. authorities insisted that Padilla and Binyam had dinner with various high-up members of al-Qaeda the night before Padilla was to fly off to America.  According to their theory the dinner party had to have been on the evening of April 3rd in Karachi, Binyam was meant to have dined with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla."  What made the scenario "absurd," as Stafford Smith pointed out, was that "two of the conspirators were already in U.S. custody at the time -- Abu Zubaydah was seized six days before, on 28 March 2002, and al-Libi had been held since November 2001."

The Founders  created two categories of enemies in the Oath of Office: foreign and domestic.  Furthermore, they stipulated that the enemies to be primarily defended against would be not enemies of the president, nor even of the nation at large, but specifically enemies of "the United States Constitution," enshrined in the founding document.  The Constitution declares in the Sixth Amendment of the Bill of Rights that:  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The creation of a permanent state of war in the "war on terror" is precisely what the Founders warned of the most strenuously.  McCain and Levin have treacherously undertaken to overturn the Bill of Rights of the Constitution permanently through this device.  Since the Constitution, in the Oath of Office, essentially creates a class of criminal, a "domestic enemy" of the "United States Constitution," it is incumbent upon loyal senators to declare treason within their midst, and to direct the Sergeant at Arms to effect the arrest of John McCain and Carl Levin as such domestic enemies.

This has been a long time coming.  "Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.  War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. . . . [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and . . . degeneracy of manners and of morals. . . . No nation could preserve its freedom in the midst of continual warfare..." --James Madison.

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