Senate Republicans In Civil War Over 'Global Battlefield' Bill
The Senate erupted Wednesday into a furious debate over the question of whether the military should be given explicit authority to indefinitely detain citizens anywhere in the world—including on U.S. soil—without access to American courts in the war on terror.
The most heated exchanges came after Republican Sen. Mark Kirk of Illinois, a career intelligence officer, said the language in the 2012 defense authorization bill would strip Americans of their most fundamental constitutional rights in a global war without end and battlefield without national borders.
“The while purpose of this exercise [debate] and this institution [the military] is to defend the rights of the United States and of U.S. citizens within their own country,” Kirk said. “What is the whole purpose of the Constitution? It is to defend your rights against the government… All of your rights are now forfeit? Clearly that is not the case.”
Kirk was one of two Republican senators who on Tuesday voted in support of a failed amendment to strip the military detention provisions from the bill. On Wednesday, he rose to support another amendment that would limit the military’s detention powers to outside of U.S. borders, much to the ire of many Republican colleagues.
“I understand that others have a different view,” he continued. “They describe the United States as a battlefield, and I would say that that is an overly harsh determination of how cheaply our rights can be held. That we have a multi-hundred-billion-dollar department of homeland defense; that we have a substantial and capable FBI; that we have enormous state and city and local police establishments, all with the capacity to investigate crimes, but, under the Constitution of the United States.”
Kirk’s perspective—echoed on the floor by key Democratic Senators—were ridiculed by supporters of the expanded military detention powers.
“I must admit that I have heard some bizarre arguments in my time,” began Sen. John McCain, R-AZ. “It is the Supreme Court of the United States that gives the interpretation of the Constitution… so our colleague from Illinois who quotes from the Constitution fails to quote from the specific addressing of this issue by the United States Supreme Court, specifically the Hamdan decision? …quote, ‘There is no bar to this nation holding one of its citizens as an enemy combatant…’ How can anything be more clear?”
“Do we want to be the first Congress in the history of the nation to say to the executive branch you no longer have that power given to you by the courts inherent within being commander-in-chief to protect us from enemies foreign and domestic?” Sen. Lindsay Graham, R-SC, following McCain. “If you came to the floor of the Senate in World War Two and suggested that an American citizen who sided with the Nazis to sabotage American interests here at home cannot be held as an enemy combatant, you would have been run out of town because most of the citizens would say that anyone who helps the enemy, citizen or not, is a threat to our country.”
Sen. Kirk rose after the dressing down by McCain and Graham—and an equally flustered Sen. Carl Levin, D-MI, who said the bill was only putting into law what the Supreme Court already ruled in the Hamdan case, allowing the holding of detainees indefinitely at Guantanamo, Cuba—saying that there was more to this issue than fighting terrorism.
“The founding fathers were wrestling with another issue: the threat of the state, the government itself against its own individuals and the abuse of power, and we would forget the lesson of history unless we also understood that that is a threat as well,” he said. “And we are told that there will be no intelligence benefit if a U.S. citizen is arrested by homeland defense or the FBI, and yet, I would say, as a member of the intelligence community, the FBI and the Department of Homeland Security are part of the intelligence community…
“The whole point of the US military is to defend our rights.”
Sen. Diane Feinstein, D-CA, who sponsored an amendment to restrict the bill’s military detention language to outside U.S. borders, said this debate was “fundamental” to what made the country a constitutional democracy. She said the original draft of the bill limited the military’s indefinite detention powers to outside the country.
“Essentially what we are trying to do is put back in that you cannot indefinitely detain a U.S. citizen without trial,” she said. “And that’s a basic right of this democracy. It’s given to us because we are a citizen of the United States.”
Feinstein then read from the majority opinion in Hamdan decision, quoting former Supreme Court Justice Sandra O’Connor.
“As critical as the government’s interest may be—and this is on page 23 of her opinion,” she began, “may be in detaining those who pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”
Feinstein then raised the concern that no proponent in the Senate admitted: that the government could be wrong in detaining individuals in wartime.
“We are being asked for the first time since I have been in this body, that an American citizen can be picked up and held indefinitely without being charged or tried,” she said. “That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War Two… Richard Nixon signed the law. The law has never been violated…
“What if it is an innocent? What if it is someone in the wrong place in the wrong time? The beauty of what our law does is give every citizen the right of review by a court. And the bill as written would not provide that review. The bill as written says that an American citizen can be picked up. Can be held for the length of hostilities. Is that five years? Ten years? Fifteen years? Twenty years? Twenty-five years? Without a trial? I say that’s wrong. I say that’s not how this democracy was set up. And I say that’s totally unnecessary.”
Feinstein concluded by saying she “doesn’t know if we can win this or not,” referring to her amendment—which Illinois’ Sen. Kirk co-sponsored. “But I think it is very important that we try. I think it is very important that we build a record in this body because I no doubt that this is going to be litigated…
“We have occasion to look at people in Guantanamo. We know there are people there who were in the wrong place at the wrong lace at the wrong time. If they are going to be held forever, that’s a mistake. And we don’t want that same ting to happen to American citizens in this country. I don’t see a need for the military to go around arresting Americans.”