Adam Serwer

Reporter

Adam Serwer is a reporter at Mother Jones. Formerly a staff writer at the American Prospect, he has written for the Washington Post, the Root, the Village Voice, and the New York Daily News.

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Do We Really Need a Second Gitmo?

—By Adam Serwer

| Mon Dec. 3, 2012 1:57 PM PST

Guantanamo Bay, Cuba – Joint Task Force Guard Force Troopers transport a detainee to the detainee hospital located adjacent to Camp Four in 2007. Navy Petty Officer 1st Class Michael Billings/Wikipedia

One Senate Republican likes Gitmo so much she wants to build a new offshore detention center—or at least force President Obama to allow Guantanamo to accept new detainees, which it hasn't done since he first took office and issued an executive order intended to close the facility.

The National Defense Authorization Act for 2013 is up for a vote as soon as Monday afternoon, and Sen. Kelly Ayotte (R-N.H.) has proposed an amendment that would compel the administration to come up with "a plan for the identification or establishment of a facility outside the United States as the location for the long-term detention" of suspected members of Al Qaeda. Her amendment is backed by Sens. Joe Lieberman (I-Conn.), James Inhofe (R-Okla.), and Saxby Chambliss (R-Ga.).

Ayotte's amendment doesn't say that Gitmo can't be the designated facility, but it leaves open the possibility of a new, alternative Gitmo elsewhere—as long as it's not in the United States, where the terrorists could use their Muslim Heat Vision to escape. Ayotte's ambiguous wording here is likely intentional, since Inhofe has proposed an amendment that would explicitly compel the Obama administration to send new detainees to Guantanamo. So where does Ayotte have in mind for America's brand new detention facility? The Palmyra Atoll? Baker Island? Perhaps some sort of high-security facility placed on a conveniently located orbiting asteroid?

[Read more in the MoJo blog]

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The Senate Voted to Outlaw Indefinite Detention...or Did It?

—By Adam Serwer

| Fri Nov. 30, 2012 10:09 AM PST

"If you don't have a right to trial by jury, you do not have due process," Sen. Rand Paul (R-Ky.) said as he urged passage of Senator Dianne Feinstein's (D-Calif.) amendment blocking indefinite detention of US citizens and legal residents captured on US soil Tuesday night. "You do not have a Constitution. For goodness' sakes, the trial by jury has been a long-standing and ancient and noble right. For goodness' sakes, let's not scrap it now."

The Senate seemed to have concurred as it passed Feinstein's amendment in a 67-29 vote, with mostly Republicans voting no. After a year of trying, Feinstein had gotten her colleagues to agree that any American apprehended on US soil should have the right to a trial.

Or had she? Consider this: Senators Carl Levin (D-Mich.), Lindsey Graham (R-S.C.) voted for the Feinstein amendment, though they were among the most vocal supporters of indefinite military detention for US citizens in the past. According to their floor speeches, the Feinstein amendment actually legalizes indefinite detention rather than blocking it.

The question of what the Senate actually did hinges on language in the amendment that reads: "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States unless an Act of Congress expressly authorizes such detention" (emphasis mine). It's that "unless" that the supporters of indefinite detention latched onto.

"Senator Feinstein's amendment…does not prohibit military detention if it is expressly authorized by law," said Levin, "which I read as a statute authorizing the use of military force itself or some other act of Congress." Since Congress did authorize the use of military force against Al Qaeda in 2001, Levin argued, Feinstein's amendment expressly allows military detention without trial of US citizens, even if captured on US soil. (An opponent of indefinite detention, Rep. Justin Amash (R-Mich.), actually had a similar interpretation.)

"That was strange indeed," said Raha Wala of Human Rights First, who isn't buying Levin's interpretation despite having opposed the Feinstein amendment because it didn't protect all persons in the United States. "I don't think that argument works."

Levin's Republican allies seemed to think otherwise. Ayotte, delivering her remarks in front of a large poster of the US-born radical Anwar al-Awlaki holding a bazooka, said she agreed with Levin's interpretation (though she did vote against the amendment). "I wanted to add my support for [Levin's] interpretation of the current Feinstein language," Ayotte said. "Would we want to tell a member of someone who had committed an act like 9/11 against us, an act of war against our country, the first thing they hear is you have the right to remain silent?" Ayotte asked, perhaps unaware a French national named Zacarias Moussaoui was tried and convicted in federal court for his part in the 9/11 attacks without ever being held in military detention. Graham also called Levin's take "incredibly sound."

Feinstein spoke shortly after Levin, Graham, and Ayotte. She thanked the chamber for a spirited debate, particularly Graham, for expressing himself "in a very spicy way." But Feinstein said that the Levin interpretation was incorrect, and that based on a federal court decision in the case of Jose Padilla (the only American accused of terrorism to be held in military detention in the US) the 2001 AUMF doesn't count as an authorization to detain US citizens captured on American soil indefinitely.

One thing might explain Levin, Graham, and Ayotte's insistence that Feinstein doesn't understand what her own amendment does: They may be hoping that if an American citizen apprehended on US soil is detained without trial, and that detention is challenged in court, judges will take their remarks as evidence of Congress' true "legislative intent" and decide that the law does authorize domestic indefinite detention. Ironically, conservatives generally frown on that kind of legal interpretation.

That seems like a long shot, however, which means that despite the flaws of the Feinstein amendment, if it makes it into law, it may mark one of the few times since 9/11 that Congress has acted to protect the due process rights of American citizens rather than narrowing them.

This post has been edited for content since publication.

Lindsey Graham Wants the Government to Be Able to Lock You Up Forever Without a Trial

—By Adam Serwer

| Thu Nov. 29, 2012 3:11 PM PST

Republican Sen. Lindsey Graham of South Carolina

Sen. Lindsey Graham (R-S.C.) is not happy that the government might have to actually convict a suspected terrorist of a crime before locking them up forever and throwing away the key. So he's working on an amendment to the pending defense bill that would make it clear that if the government thinks you're a terrorist, it can put you in prison without ever having to prove beyond a reasonable doubt that you so much as vandalized a dive bar bathroom wall.

The text of the amendment, which is circulating on the Hill but has not yet been formally introduced, would affirm the government's power to "detain under the law of war" any individual "who joins al-Qaeda, the Taliban, or an associated force" and "plans or participates in a belligerent act against the United States on behalf of such forces anywhere within the United States and its territories." In other words, you could be deprived of your freedom in a war with no definable end, based on the mere suspicion that you've committed a crime. During the debate over last year's defense bill, Congress agreed to leave open the question of whether or not military detention authority applied to US citizens apprehended on American soil. This amendment would ensure that it does.

The amendment is a response to the one proposed by Sen. Dianne Feinstein (D-Calif.) and Sen. Mike Lee (R-Utah) that would prevent the government from detaining Americans and legal permanent residents suspected of terrorism without charge or trial. That amendment wouldn't protect all non-citizens apprehended on US soil however, so civil liberties and human rights groups are opposing it as unconstitutional. "Any approach to dealing with indefinite detention should be consistent with basic constitutional principles, which say that all persons are guaranteed due process," Human Rights First's Raha Wala said in a statement emailed to reporters.

Instead, these groups are backing amendments from Sen. Mark Udall (D-Colo.) that would ensure that any person—citizen or otherwise—apprehended on US soil could not be deprived of their freedom without due process of law. You know, like it says in the Constitution.

White House Makes Laughable Defense Bill Veto Threat

—By Adam Serwer

| Thu Nov. 29, 2012 1:59 PM PST

President Barack Obama has threatened to veto the 2013 National Defense Authorization Act if the final version includes certain provisions, including continuing restrictions on Guantanamo Bay detainee transfers that make it impossible for the administration to close the prison. The statement was issued Thursday, as the Senate debated the defense bill.

Legislators should be forgiven for not taking this threat too seriously.

The first big restrictions on Gitmo transfers passed in 2010. Attorney General Eric Holder called them "dangerous," but the administration did nothing. Then in January 2011, the administration's ability to move detainees out of Gitmo was curtailed again. The administration did nothing. They issued a formal veto threat in 2011 over provisions in that year's National Defense Authorization Act, then backed down.

Obama reiterated his intention to close the Guantanamo detention camp on Jon Stewart's Daily Show just prior to the 2012 election. But Congress has hemmed him in with those transfer restrictions, and bringing suspected terror detainees to US soil is even less popular than it used to be.

Civil liberties and human rights groups have urged Obama to veto the defense bill if it retains the transfer restrictions, since they would make it impossible for Obama to fulfill his promise to close Gitmo. It's also the only way for the administration to convince Congress that it's actually serious when it says the restrictions are unacceptable.

But they probably aren't serious, at least not if we're defining "seriousness" as being actually willing to veto the bill. Not if the past is any indication.

Will Congress End Indefinite Detention of Americans?

—By Adam Serwer

| Thu Nov. 29, 2012 8:01 AM PST

Will Congress prevent American citizens from being subject to indefinite military detention? A bipartisan group of senators have crafted an amendment to the latest defense bill that they believe will do exactly that.

"The federal government experimented with indefinite detention of United States citizens during World War II, a mistake we now recognize as a betrayal of our core values," said Senator Dianne Feinstein (D-Calif) Wednesday while introducing the amendment. "Let's not repeat it." Feinstein, who co-authored the amendment with Senator Mike Lee (R-Utah) has support not only from Senate Democrats Chris Coons (D-Del) Kirsten Gillibrand (D-NY) and Frank Lautenberg (D-NJ) but also Republican Senators Rand Paul, (R-Ky) Susan Collins (R-Maine) and Mark Kirk (R-Ill). "Granting the United States government the power to deprive its own citizens of life, liberty, or property without full due process of law goes against the very nature of our nation's great constitutional values," Lee said. The amendment could be voted on as early as Thursday, but it'll still have to survive the House, where the GOP majority has scuttled similar efforts to prevent indefinite detention of Americans.

About a year ago, President Barack Obama signed the 2012 National Defense Authorization Act promising not to use Congress' authorization of war against Al Qaeda to deny American citizens suspected of terrorism a fair trial by placing them in indefinite military detention. Senators, deadlocked over whether or not the Constitution allows such detention, agreed to adopt an amendment that left unaswered the question of whether Americans could be detained without trial. This year, Feinstein and Lee think their amendment blocking such detention for American citizens and legal permanent residents can pass.

Not all civil liberties groups however, are supporting the effort. That's because they think anyone on American soil should be given a trial if accused of a crime, given that the Constitution protects "persons," rather than "citizens." The Feinstein-Lee amendment is "inconsistent with the constitutional principle that basic due process applies to everyone in the US," says ACLU legislative counsel Chris Anders. Not only that, but Anders worries that the amendment could be construed to actually imply that the government has the constitutional authority for such detention.

The way the amendment reads now, a foreign visitor like Umar Abdulmutallab—the Nigerian who tried to explode a bomb in his underpants on a flight to Detroit several years ago—could still be subject to indefinite military detention.

So why does Feinstein and Lee's amendment only apply to US citizens and legal residents? Becuase that's what could pass, Feinstein said Wednesday. While she could support extending the protection to any person apprehended on US soil, "the question is whether there is enough support in this body," Feinstein said. "I do not believe there is."