Is the Senator familiar with the fact that the language which precluded the application of section 1031 to American citizens was in the bill that we originally approved in the Armed Services committee and the Administration asked us to remove the language which says that U.S. citizens and lawful residents would not be subject to this section? Is the Senator familiar with the fact that it was the administration that asked us to remove the very language -- which we had in the bill which passed the committee, and that we removed it at the request of the administration -- that would have said that this determination would not apply to U.S. citizens and lawful residents?Naturally, this was embraced as definitive proof Obama will not veto the budget over the detainee provisions, which translates to Obama will now be wantonly detaining Americans for, say, making fun of Bo. Taken out of context as it is, it does sound fairly convincing, I must say. But that exchange occurred somewhere around the 4:42:00ish mark. If one listened to the whole proceeding, especially starting around 1:30:00 or so, one would have heard Levin say these things as well:
Administration officials reviewed the draft language for this provision and recommended additional changes. We were able to accommodate those recommendations, except for the Administration request that the provision apply only to detainees captured overseas and there's a good reason for that. Even here, the difference is modest, because the provision already excludes all U.S. citizens. It also excludes lawful residents of U.S., except to extent permitted by the constitution. The only covered persons left are those who are illegally in this country or on a tourists/short-term basis. Contrary to some press statements, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the Administration to codify existing authority that has been upheld in federal courts.Levin's comments largely mirror this statement from the Executive Office of the White House, which also bear's Levin's name. And wherein lies the rub:
Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.That is to say, all of these dreaded provisions apply to detainees as already defined by the AUMF. As Levin said, it does not represent new powers of detention. The detainee provisions attempted to codify existing law; the Administration and some Dems on the Armed Services Committee had problems with the language as originally written, so changes were made (back to the C-SPAN transcript):
New bill modifies detainee provisions -- modified 1031 as requested by administration to assure that provision which provides statutory basis for detention of individuals captured in the course of hostilities conducted pursuant to the 2002 AUMF -- to make sure that provisions and statutory basis is consistent with the existing authority upheld by courts and neither limits nor expands the scope of activities authorized by the AUMF
The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. (Executive Office Statement)
...it also modified 1033 and 1034, as requested by the Administration, to impose one-year restrictions, rather than permanent limitations, on gitmo detainee transfers to foreign countries. We were unable to agree to the administration proposal to strike section 1032, the provision that requires military detention of certain Al Quaida terrorists subject to a national security waiver. We did adopt changes. Particularly, we modified the provision to clarify that the President decides who makes determinations of coverage, how they are made and when they are made, ensuring that executive branch officials will have flexibility to keep any covered detainee in civilian custody or to transfer any covered detainee for civilian trial at any time. ...The bill requires, for first time, that in the process of determining the status of any detainee held in long-term military custody anywhere in the world, detainee will have access to a lawyer and a military judge, which is not the case now.(C-SPAN)Guess what else? If a detainee, in the presence of his lawyer and before the military judge, is determined to be among the covered class of detainees who can be held indefinitely under the laws of war, even that is now subject to annual review. According to Levin, detainees have more protection than ever before with this bill, especially since even if they are detained, the legal precedents in Hamden v Rice, etc., grant detainees habeas rights.
In any event, the Senate hearing in question here is from November 17th; I don't know what the final sausage will contain, or exactly what's current right now. I just wanted to respond to that video, which is, of course, being taken as gospel. The transcripts from C-SPAN are quasi-verbatim; I left out filler words that didn't change anything, like "that" and what not, but otherwise made a point of using Levin's own words.
Update: I expanded on this in a post over at big orange.