At a long overdue Senate committee hearing Wednesday, vocal upport for the controversial indefinite detention rules in last year's defense authorization act finally reared its head, seeming to still hinge on just one thing: as one witness essentially said, reading terrorists their rights may just prove fatal.
Appearing before the Senate Judiciary Committee, several witnesses from academia and two members of the House all came out in favor of legislation that would clarify the National Defense Authorization Act (NDAA) to stipulate that only an act of Congress can withdraw Miranda rights.
While a cross-partisan group of Senators on the Judiciary Committee adamantly oppose provisions allowing the indefinite detention of Americans, the opposition maintained a presence too, calling former Bush legal adviser Steven G. Bradbury to testify. Bradbury, in his role at the Office of Legal Counsel, crafted memos for the Bush administration that granted a very wide view of executive power, even permitting the use of torture to obtain intelligence.
Bradbury argued that legislation which would clarify the NDAA would "bind future Congresses and to shift to the president the burden of obtaining an express authorization for detention," potentially leaving the nation vulnerable to attack.
Responding to Bradbury, Sen. Dianne Feinstein (D-CA) argued that the nation's counterterrorism aparatus has been more effective than ever in recent years due to its reliance on a pool of FBI agents who collaborate on shared intelligence to prevent national security threats, all while operating under traditional criminal law.
"So, doesn't this refute your assertion?" she asked. "The fact that the record doesn't document this?"
Bradbury replied by claiming that "early administration" of Miranda rights may interfere with a terrorism investigation by giving the suspect "early access" to the courts, again potentially endangering national security in the event of an "unfolding plot."
"I really dispute that," Feinstein said. "Since your day, what's happened is the FBI now has 15,000 people in an intelligence unit in 57 offices across the United States. And that's how 20 potential attacks were prevented. [Umar Farouk] Abdulmutallab was Merandized. It didn't stop him from pleading guilty. He's plead guilty and he's serving a life sentence. So, I don't think the theory matches the practice."
Echoing Bradbury's sentiment was Sen. Lindsey Graham (R-SC), who repeatedly insisted that he does not want to see terrorists being "read their rights" by public law enforcement if there's also an option to remand them into military custody for a more intensive interrogations. He added that because "the homeland to me is part of the battlefield," no person should be exempt from military custody if they are expressly acting as an enemy combatant, even if that person is a U.S. citizen.
The Obama administration has resisted requirements that it hold all terrorism suspects in military custody, saying that it would constrain executive power to limit the tools available for fighting terrorism. President Obama further issued a signing statement along with his signature on the bill, explaining that his administration will not use the powers to detain Americans without due process.
"I think the comparison here to what happened in World War II is a little more significant than what Mr. Bradbury might suggest," Sen. Al Franken said, noting the testimony of Lorraine K. Bannai, a professor at the Seattle University School of Law. In her segment, Bannai had drawn parallels between the internment of Japanese Americans to the modern day potential for seizing other Americans without charge and holding them for an unspecified amount of time.
Although Franken voted for the NDAA, he separately voted for a failed amendment that would have struck down the indefinite detention provisions, and reiterated his opposition at the hearing. "Despite our best efforts, Congress ended up passing a bill that will radically alter how we investigate, arrest and detain individuals suspected of terrorism, and this in my mind is a complete mistake.
He went on: "The idea that we can arrest and detain U.S. citizens and other persons living in the U.S., indefinitely, without charge, without trial by jury, a jury of their peers, without having to prove guilt beyond reasonable doubt is in my opinion is a denigration of the Bill of Rights. Is a denigration of what our founders created when they established a civilian, non-military justice system for trying and punishing people for crimes they commit on U.S. soil."
Watch this video from The U.S. Senate, broadcast Feb. 29, 2012.