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And, yes, I DO take it personally: Fear that the justifications they have long given for the War no longer exist
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Thursday, December 01, 2011

Fear that the justifications they have long given for the War no longer exist

glenn on the national defense authorization act...
Here are the bill’s three most important provisions:

(1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

(2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who “substantially supports” Al Qaeda, the Taliban or “associated forces” (Sec. 1031); and,

(3) imposes new restrictions on the U.S. Government’s ability to transfer detainees out of Guantanamo (Secs. 1033-35).

it's glenn's analysis that i find to be the really interesting part...
I haven’t written about this bill until now for one reason: as odious and definitively radical as the powers are which this bill endorses, it doesn’t actually change the status quo all that much. That’s because the Bush and Obama administrations have already successfully claimed most of the powers in the bill, and courts have largely acquiesced. To be sure, there are dangers to having Congress formally codify these powers. But a powerful sign of how degraded our political culture has become is that this bill — which in any other time would be shockingly extremist — actually fits right in with who we are as a nation and what our political institutions are already doing. To be perfectly honest, I just couldn’t get myself worked up over a bill that, with some exceptions, does little more than formally recognize and codify what our Government is already doing.

now, prepare to be chilled to the bone...
Indefinite, charge-free military detention of people accused — accused – of Terrorism has been fully embraced by both the Bush and Obama administrations (it’s one of the reasons some of us have been so vocally critical). The Obama administration has gone even further and argued that it has the power not merely to detain accused Terrorists (including U.S. citizens) without due process, but to kill them. It is true that the Obama DOJ has chosen to try some accused Terrorists in civilian courts — and this bill may make that more difficult — but the power of military detention already rests with the Executive Branch. And while it would be worse for Congress to formally codify these powers and thus arguably overturn long-standing prohibitions on using the U.S. military on U.S. soil, the real legal objections to such detention are grounded in Constitutional guarantees, and no act of Congress can affect those. In sum, this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest. That’s not a mitigation of this bill’s radicalism; it’s proof of how radical the Executive Branch under these two Presidents has already become.

on the aumf (authorization for the use of military force)...

We have the same story with this provision. On paper, Levin/McCain would expand the War on Terror by codifying more expansive language defining the scope of the conflict than is contained in the 2001 AUMF. The old AUMF only authorized force (which the Supreme Court found includes military detention) “against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the 9/11 attack and those nations which harbored them. By contrast, Levin/McCain would also authorize force against “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” This is intended to allow force to be used against groups that did not even exist at the time of 9/11 — such as the ones in Yemen and Somalia — as well to allow force against persons who may not be a member of those groups but who provide “substantial support.”

Here again, though, this is already what the U.S. Government is doing. The Obama administration has repeatedly insisted – and some courts have accepted — that the 2001 AUMF already includes not only Al Qaeda but “associated forces.” Thus, insists the Obama administration, it has the right to bomb Yemen and Somalia under the terms of the 2001 AUMF even though the targeted groups didn’t even exist at the time of the attack — and to detain people who had nothing to do with 9/11 — because they are already interpreting the 2001 AUMF in the same way as Levin/McCain define the war: Al Qaeda and “associated forces,” and not just members of Terrorist groups but those who “substantially support” such groups.

on obama's veto threat...
Let’s be very clear, though, about what the “veto threat” is and is not. All things considered, I’m glad the White House is opposing this bill rather than supporting it. But, with a few exceptions, the objections raised by the White House are not grounded in substantive problems with these powers, but rather in the argument that such matters are for the Executive Branch, not the Congress, to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power. They are not arguing: it is wrong to deny accused Terrorists of a trial. Instead they insist: whether an accused Terrorist is put in military detention rather than civilian custody is for the President alone to decide.

glenn's equally chilling summary...
If someone had said before September 11 that the Congress would be on the verge of enacting a bill to authorize military detention inside the U.S., it would be hard to believe. If someone had said after September 11 (or even after the 2006 and 2008 elections) that a Democratic-led Senate — more than ten years later, and without another successful attack on U.S. soil — would be mandating the indefinite continuation of Guantanamo and implementing an expanded AUMF, that, too, would have been hard to believe. But that’s exactly what Congress, with the active participation of both parties, is doing. And the most amazing part of it all is that it won’t change much, because that is more or less what Washington, without any statutory authorization, has already done. That’s how degraded our political culture is: what was once unthinkable now barely prompts any rational alarm — not because it’s not alarming, but because it’s become so normalized.

i've lamented too many times about what's become of my country... it's very hard to witness this kind of degradation of fundamental principles that we have been witnessing virtually every day now for over ten years without lapsing into heart-numbing despair...

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