ON POINT: Fighting crime vs. fighting a war

By Denise M. Champagne The Daily Record Newswire Some members of Congress are already looking at changing provisions of the National Defense Authorization Act just months after it was signed into law Dec. 31. They believe it gives the government too much power and could allow the military to indefinitely detain American citizens captured on American soil. Opponents of changing the law claim there is a difference between fighting crime and fighting a war and that detention of American citizens acting as enemy combatants should be handled by the military. "The bill contained what, to me, are deeply troubling provisions related to indefinite detention," said Sen. Patrick Leahy, D-Vt., at a special hearing last month. He chairs the Senate Committee on the Judiciary, which conducted a hearing on "The Due Process Guarantee Act: Banning Indefinite Detention of Americans," a new bill circulating in the House and Senate. Leahy said he views the provisions as inconsistent with the nation's commitment to protect liberty, that it violates core constitutional principles and he vowed to continue to fight indefinite detention. "The American justice system is the envy of the world," Leahy said. "A regime of indefinite detention degrades the credibility of this great nation around the globe, particularly when we criticize other governments for engaging in such conduct." Sen. Charles E. Grassley, an Iowa Republican and the committee's ranking minority member, said the NDAA clearly exempts U.S. citizens from mandatory military custody and that there has been a long-standing tradition for the nation to hold one of its own as an enemy combatant. He cited the U.S. Supreme Court decisions in Hamdi v. Rumsfeld 542 U.S. 507 (2004) and Rumsfeld v. Padilla, 542 U.S. 426 (2004) regarding the rights of U.S. citizens to challenge their status as an enemy combatant. "This begs the question, 'Why is this legislation even necessary?'" Grassley asked, further questioning what the law would be for American citizens engaged in activities against the nation even if they were captured abroad and if limiting the NDAA could increase the chances of another terrorist attack. "We have been very fortunate since Sept. 11 [2001], although there have been some close calls," Grassley said. "The ability of the president to use the power Congress has given him has been responsible for this outcome." Leahy then turned the gavel over to Sen. Dianne Feinstein, a California Democrat, who had introduced the new proposed legislation immediately after passage of the NDAA in early December. She recalled her father taking her as a child to an old racetrack that had been converted into an internment camp for Japanese Americans rounded up during World War II for no other reason than the nation was at war with Japan. "I think I really didn't realize the impact of that until many years later," Feinstein said. "It remains a dark stain on our history and our values that we should never repeat." The wounds are much deeper for Lorraine K. Bannai professor of legal skills at Seattle University School of Law, a third generation Japanese American whose family was incarcerated in the Mojave Dessert. She said their imprisonment was unlawful and they were held not out of necessity, but in violation of laws the country was at war to protect. She is the director of the Fred T. Korematsu Center for Law and Equality, which is part of the law school. The center is to advance justice and equality through research, advocacy and education. It is named for a man whose internment was upheld by the U.S. Supreme Court "by military necessity." Bannai helped get Korematsu's case reopened and in 1984, his conviction for defying military orders was vacated. Bannai said the bill is a step in the right direction, but suggested lawmakers include due process guarantees for all people, omitting any suggestion that such a detention would be lawful if approved by Congress and "affirm to this country and the rest of the world" that the U.S. government is by the rule of law and not military discretion. The Due Process Guarantee Act (S.2003) clarifies that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention of a citizen or lawful permanent resident of the U.S. without charge or trial unless an act of Congress expressly authorizes such detention. Feinstein said it is not about whether citizens such as Hamdi and Padilla should be captured, incarcerated and punished; they should be. She said it is to protect people like Korematsu, "or someone in the wrong place at the wrong time who gets picked up and held until the end of hostilities and who knows when it will end?" Rep. John Garamendi, D-Calif., who is sponsoring the bill in the House (H.R. 3702), said the proposal provides clarity in an area where Congress and the American people cannot afford ambiguity and that there must be no uncertainty when it comes to the rights of the American people. He said it has been more than a decade since 9/11, noting people were arrested then and kept behind bars, and that liberty does not have to be sacrificed for security. Garamendi noted his bill has the bipartisan support of 62 House members, as does a similar bill (H.R. 3676), introduced by Louisiana Republican Jeffrey Landry. "If we do nothing more this year, let us show the American people when their liberty is at stake, those they have trusted, will secure it," Landry said. Also opposing the measure is Stephen G. Bradbury, former acting assistant attorney general and principal deputy for the Office of Legal Counsel, Department of Justice. He noted protections already exist in that any American citizen or lawful permanent resident captured and held as an enemy combatant has the right to challenge the basis for his detention in a habeas corpus proceeding, as well as procedural rights guaranteed under the Due Process Clause. "Nevertheless, in addressing the proposed legislation, we need to consider the possibility that there could well be extraordinary circumstances during an armed conflict when the president may determine it necessary to detain a U.S. citizen as an enemy combatant consistent with the laws of war," Bradbury said. He believes the proposed legislation could impede the nation's ability to act with urgency and deny the president the ability to detain U.S. citizens as enemy combatants. Bradbury used al-Qaida as an example and its practice of recruiting Americans to carry out attacks against the U.S., a threat he said is likely to increase. "Unfortunately, S.2003 would have the effect of reducing the flexibility of the United States to respond to that growing threat by eliminating the possibility of holding such combatants consistent with the traditional laws of war," he said. "Second, if we capture on our soil a U.S. citizen or lawful permanent resident who is such an enemy recruit and has been actively involved in carrying out or otherwise aware of an unfolding plot by a foreign power against the United States, this proposed legislation could seriously impede our ability to gather critical intelligence from the combatant through military questioning." Bradbury suggested prosecuting matters in criminal court is insufficient and could lead to the release of sensitive classified intelligence or military secrets that should be kept from disclosure. "The homeland is part of the battlefield," said Sen. Lindsey Graham, R-S.C. "Just like any other war, when American citizens went over to the enemy, they were treated like it." He said detaining Americans will be rare and that there should be a legal system that makes a distinction between fighting a crime and fighting a war. The hearing was broadcast live on the Judiciary Committee's website (www.judiciary.senate.gov). Published: Fri, Mar 16, 2012