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Senate smacks civil liberties. Hard.

The Senate voted overwhelmingly tonight against an attempt to strip the controversial detainee provision out of the defense bill. It wasn’t even close: 60-38. Sen. Rand Paul was a leader of the honorable defeated. Read this: [1]

The measure, part of the massive National Defense Authorization Act, was also opposed by civil libertarians on the left and right. But 16 Democrats and an independent joined with Republicans to defeat an amendment  [2]by Sen. Mark Udall (D-Colo.) that would have killed the provision, voting it down with 61 against, and 37 for it.

“I’m very, very, concerned about having U.S. citizens sent to Guantanamo Bay for indefinite detention,” said Sen. Rand Paul (R-Ky.), one of the Senate’s most conservative members.

Rand’s top complaint is that a terrorism suspect would get just one hearing where the military could assert that the person is a suspected terrorist — and then they could be locked up for life, without ever formally being charged. The only safety valve is a waiver from the secretary of defense.

“It’s not enough just to be alleged to be a terrorist,” Paul said, echoing the views of the American Civil Liberties Union. “That’s part of what due process is — deciding, are you a terrorist? I think it’s important that we not allow U.S. citizens to be taken.”

Here are the 14 Democrats (plus Joe Lieberman) who joined every Republican, except for Paul and Mark Kirk of Illinois, in voting down the amendment:

Sens. Bob Casey (Pa.), Kent Conrad (N.D.), Kay Hagan (N.C.), Daniel Inouye (Hawaii), Herb Kohl (Wis.), Mary Landrieu (La.), Carl Levin (Mich.), Joe Manchin (W. Va.), Clair McCaskill (Mo.), Ben Nelson (Neb.), Mark Pryor (Ark.), Jack Reed (R.I.), Jeanne Shaheen (N.H.), Debbie Stabenow (Mich.) and Sheldon Whitehouse (R.I.).

The president is threatening to veto this thing. There appear to be enough votes in the Senate to sustain a presidential veto — but Jack Goldsmith believes Obama will fold: [3]

I doubt that the President will blow up the bill.  Too many liberal democrats, including Senate Arms Services Chair Carl Levin, support it, so the president cannot charge political extremism.  And as John McCain has said [4], “[t]here is too much in this bill that is important to this Nation’s defense.”  Is the president really going to expose himself, in an election cycle, to the charge (fair or not) that he jeopardized the nation’s defenses in order to vindicate the principle of presidential discretion to release terrorists from GTMO or to bring them to the United States to try them in civilian courts?  It is the right principle, but it is a generally unpopular one that the president has not to date fought for.  I doubt he will start fighting for it eleven months before the election.

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19 Comments To "Senate smacks civil liberties. Hard."

#1 Comment By Lasorda On November 30, 2011 @ 12:21 am

Is there something wrong with me? Do you have an email address for commenters? Do you have a blogroll, tags, all the usual blogger sidebar crap? Hook a fellow crunchycon up!

#2 Comment By Patrick On November 30, 2011 @ 12:54 am

Some of the Democrats *might have* voted against the amendment in order to allow it in and make the bill so unpalatable as to be voted down when it gets to the floor.

Think about like this: you want this bill killed for some reason. Instead of trying to make it into a better bill, you could make this bill *so bad* that, when the whole thing comes to a vote, there will be a majority of Senators who find the thing too atrocious to vote for.

In that case, it would make sense for a Senator hostile to the bill to hinder efforts to improve the bill, only so they can vote against the monstrosity on the final vote. Aiding improvements of the bill only will help there be more “yes” vote when the final bill comes up. It seems that Rand Paul is now a “no” vote, whereas he might’ve been a “yes” vote without this provision. And so if you were a Senator hostile to the bill, you’ve now picked up a “no” vote on the final vote by opposing efforts to improve the bill. See?

#3 Comment By Nick K. On November 30, 2011 @ 1:26 am

Only two republicans voted against what is arguably a fascist assault on the Bill of Rights and a blow to the basic security of US citizens? As if we needed any further evidence that genuine conservatism is dead in the GOP.

Time to start caching some guns out in the woods.

#4 Comment By MH – secular misanthropist On November 30, 2011 @ 5:38 am

Scott Brown just lost my vote and Elizabeth Warren just got it if she challenges him.

#5 Comment By Russell Arben Fox On November 30, 2011 @ 6:10 am

As a (very small) silver lining, this gives me just one more reason to continue to really like pro-life, pro-government Democrat, Bob Casey. The man is fighting the good fight (usually losing it too, but still, an A for effort there).

#6 Comment By Russell Arben Fox On November 30, 2011 @ 6:21 am

Oh, wait, I misread the post–Casey actually voted against the amendment and thus for these potentially terribly abusive rules. I take back my above comment.

#7 Comment By Pyrrho On November 30, 2011 @ 7:03 am

Jack Goldsmith believes Obama will fold.

Goldsmith may be right, but I believe we’re watching yet another kabuki dance in the Senate. In voting for this bill, Democratic senators whose seats are vulnerable get to look strong on defense, knowing the president will insist on the removal of this provision or his veto will be sustained. He has high enough visibility to explain his position. Many of these senators do not and would be vulnerable to a “she voted against funding for our troops” attack in the next election.

I have a hard time believing Jeanne Shaheen would vote for this bill unless this was part of her reasoning.

#8 Comment By Naturalmom On November 30, 2011 @ 8:31 am

I hope Pyrrho at 7:03 is right.

#9 Comment By Al-Dhariyat On November 30, 2011 @ 9:09 am

I’m glad Mr. Fox changed his comment! And hope Pyrrho is correct.

As I noted on an older post, I just wrote to Bob Casey urging him to reconsider his position on the Udall amendment. This is very disappointing. Oh, I suppose I’ll also write to Pat Toomey but he’s unlikely to switch his vote at all.

#10 Comment By Franklin Evans On November 30, 2011 @ 9:46 am

My thanks to Patrick and Pyrrho for pointing out a very real possibility: We are watching a kabuki dance (h/t Pyrrho) that we’ve seen countless times in the past over many issues great and small.

I just wish that Congress, for once, would not play political brinksmanship with fundamental citizen rights. My blood pressure is not happy.

#11 Comment By TTT On November 30, 2011 @ 10:12 am

Obama had better veto this, but after his approval of the assassination of a U.S. citizen without trial (Awlaki) it will be hard for him to hang his hat on Constitutional purity. Reason #27 why he should have had State revoke Awlaki’s citizenship beforehand over joining a foreign military engaged in hostilities against us.

#12 Comment By Stef On November 30, 2011 @ 10:22 am

My history-major son remarked, “Why should Obama veto this bill? If he signs it, then any right-wing militias or anyone else like that could be labeled as ‘terrorists’ and just be ‘disappeared.'” He also mentioned, “What if secessionists were suddenly labeled terrorists?” (cough: looking at you, Rick Perry, cough.)

This is especially ironic in light of the right-wing’s hysteria about militias during Clinton’s administration, when Clinton and Reno went militia-hunting.

He thought it was crazy that the GOP would try to repeal the Fourth Amendment when it could so easily be used against them under a Democratic administration.

@Nick K: Careful, gun caching could result in a “terrorist” label.

#13 Comment By Lord Karth On November 30, 2011 @ 11:36 am

Many’s the slip ‘twixt the cup and the lip. The clause will not survive.

I agree with Pyrrho. This is the kind of double-shuffle that happens every day in the Happy Monkeys’ Hallowed Halls.
And we all know what monkeys like to throw.

Your servant,

Lord Karth

#14 Comment By sal magundi On November 30, 2011 @ 11:41 am

first they came for the communists, but i didn’t speak out, …

#15 Comment By DS On November 30, 2011 @ 3:02 pm

It’ll never survive a court challenge. The Constitution’s requirements of due process and habeas corpus can’t be trumped by a statute.

#16 Comment By Siarlys Jenkins On November 30, 2011 @ 7:41 pm

Pyhrro is probably correct, although the game may have several more layers to it. This is what John Kerry meant when he uttered the ill-prepared statement “I voted for the bill before I voted against it.”

“Is the president really going to expose himself, in an election cycle, to the charge (fair or not) that he jeopardized the nation’s defenses in order to vindicate the principle of presidential discretion to release terrorists from GTMO or to bring them to the United States to try them in civilian courts?”

Well, Senator Russ Feingold went into the 2004 election as the only senator to vote no on the U.S.A. Patriot Act, for similar reasons. Republicans thought him “definitely vulnerable” for that. Feingold was re-elected with 56% of the vote, running six points ahead of John Kerry, who had his finger to the wind all year. (The Republican that year ran 300,000 votes ahead of the Republican who defeated Feingold in 2010, and still lost.) In September of 2004, a young senate candidate from Illinois named Barack Obama came to Milwaukee’s Washington Park bandshell to praise Sen. Feingold for having the courage to insist that the Patriot Act be amended before passage. Maybe he will show the same courage that he praised in another. Or maybe not. If he does, it could do him a lot of good. Voters respect Democrats who show a little spine. It’s the spineless wimps who think cowering in the shadow and pretending to be Bush lite, Republican lite, or Tea Party lite, is the way to get elected, who end up in the dustbin of history.

#17 Comment By NorCal On November 30, 2011 @ 10:32 pm

i’m sure all well-meaning peace-and-love protesters will be rained down upon on this horrible fascist bill shortly.

#18 Comment By MI On December 1, 2011 @ 9:00 am

Query: Does the 9/11 AUMF authorize domestic detention of US citizens as enemy combatants? My (admittedly-limited) understanding is that the case law on this point remains unsettled. If the 9/11 AUMF doesn’t authorize such detentions, then I doubt sec. 1031 of the NDAA12 does, since 1031(d) states that “Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”

#19 Comment By Siarlys Jenkins On December 1, 2011 @ 8:52 pm

NorCal: I don’t know about well-meaning peace-and-love protesters, but I would expect any Second Amendment loyalist to rain down upon this horrible fascist bill pronto.