December 01, 2011

Padilla Redux

A lot of hair-tearing and drum-thumping and bloody-shirt-waving out there in wingnutterland about Senate Bill 1867, the Senate version of House Bill 1540, and its provisions regarding detainees. This is the Defense Autorization Act, and the sections under contention in this behemoth of a bill are (respectively) sections 1031 and 1032 in S.1867, and Section 1034 in H.1540.

The hysterically hyperbolic claims being made are that the Senate bill (based on the House bill) would "expand the battlespace" on the WoT to US Soil (already here for a decade, no?) and allow the President to order the indefinite military detention of U.S. citizens, ala Jose Padilla. (If any of this sounds familiar, it's because it's a re-run of claims from the last decade.)

Tired of the flame-rhetoric being tossed about, I did what would seem obvious and read the relevant sections of both bills, as published on THOMAS. As near as I could tell, the only major difference between the two lay in the specific exemptions of Section 1032 in S.1867 that, in essence, exempted US citizens and (for the most part) lawful alien residents of the US from the military detention rules. Then I took a six-pack over to visit with a friend who's a former assistant US Attorney, so he could tell me what I missed.

His take pretty much matched mine as far as the published versions go: Neither bill changes the legal authority of this or the previous admin as far as authorizations under AUMF 2001. They do lay out a set of ground rules for how those authorizations are implemented. Whereas before they were improvised, the bills would provide a framework. Neither bill "expands the battlespace" in any way as compared to the standing law of the AUMF of 2001, they merely reiterate the Congressional authorization of war powers to the President, and explicitly disclaim that they either limit or expand Presidential authority under the AUMF. Where they differ materially is in the exemptions of 1032, which are lacking in the House version, and that's where the Padilla case comes in as directly applicable.

The Bush admin in the Jose Padilla case captured an American citizen who had trabvelled overseas to train in terrorism for the purpose of launching terrorist attacks in the US, and detained him as he got off the plane returning from that training. They held him in civilian custody as a material witness to the 9/11 attacks. Two days before a judge was to rule on his detention under the material witness warrant, the Bush admin designated Padilla as an "enemy combatant" pursuant to the terms of the 2001 AUMF, and placed him in military custody. Padilla's attorneys filed for habeus corpus. To skip the reams of detail, lower courts ruled against the admin and the admin eventually dodged the question going to the Supreme Court by releasing Padilla to civilian custody and chargimg him with in civilian court with crimes overseas. He was susbequently convicted on terrorism charges, and the authority of the President under the 2001 AUMF to declare US citizens "enemy combatants" and detain them in military custody on US soil outside of a war zone remains unsettled.

The House bill lefft that an open question, though from the rulings in Padilla's case and others, it would seem that the courts are inclined to treat US citizens and lawful alien residents as subject only to civilian detention and prosecution when captured on US soil. (Those captured on the field in combat are a different matter, and always have been.) Section 1032 affirms that principle rather than leaving it up in the air.

So what's the gripe here with the Senate version, which specifically provides that any US citizens or (for the most part) lawful alien residents captured by the military be removed to civilian custody? Well, it seems the Obama admin's veto threat was based mostly on the Guantanamo provisions in the bills -- and as to why that is, your guess is as good as mine. But the specific objection seems to be the cluase prohibiting federal funding for facilities on domestic soil to house Gitmo detainees.

BUT it further seems that the direct request of the White House was that Section 1032 be omitted, that they specifically lobbied Levin on that point. They apparently want to keep the "Padilla question" open, rather than affirming what seems to be the direction the courts are going. But as of this writing, 1032(b) excluding US citizens and (for the most part) lawful alien residents from indefinite military detention is still in the Senate bill as published on THOMAS.

To sum up: The hysteria about "extending the battlespace" to allow the President to designate US citizens on US soil as "enemy combatants" to be held in military custody appears overblown, and the situation there is no different than it has been for the last decade under the 2001 AUMF. And it seems it's the White House that wants Section 1032(b) that would defuse that removed from the bill.

It hasn't gone to conference yet to reconcile the House and Senate versions, but judging from the vote totals, the public ranting about who's doing what here seems to be exactly backward. A majority in the Senate want the 1032(b) exclusions. The rest appears to be noise identical to that dating back to the original AUMF. More as this develops, if it does, but I take it as indicative that the more reliable media outlets are not confirming what the ranters are screaming about -- this appears to be a noise machine from multiple sources that just wants the whole damn question left open.