Dr. Boozman's Check-up
We’ve received a lot of comments and questions about the detainee provisions included in the recently passed S. 1867, The FY12 Defense Authorization Bill and I wanted to pass along this information that answers and addresses some of those questions.
This language is not as broad as some have implied, nor has it been deemed unconstitutional. Rather, it is a carefully crafted provision to help defend our nation against the threat posed by al-Qaeda, while still upholding the Constitution.
The provision is written in such a manner that it applies to a very narrowly defined category. To be detained under these provisions, a suspect must be deemed to be a member of al-Qaeda or its affiliates and be involved in plotting or committing attacks on the United States.
American citizens accused of carrying out or planning an attack against the U.S. and being affiliated with al-Qaeda still have the right to appear before a judge as is the case under current law.
The reality is that we need to treat these enemy combatants according to the laws of war, not the laws of our criminal court. Terrorists, traitors, and those who declare war on the U.S. need to be tried in a military tribunal. The current, and previous Administrations have followed this policy, which is based on precedence that dates back to George Washington. The fact that the policy has been upheld by the Supreme Court also lends credence to the need to codify the language into law.
Additionally, it is important to note that the current Administration’s veto threat is really only based on the fact that the language in the bill does not allow President Obama to close Guantanamo Bay, grant constitutional rights to terrorists, and try them in a civilian court.
The amendment offered by Senator Udall to remove the entire detainee provision would allow President Obama to proceed in that direction. This would be the wrong course of action to take while we’re still fighting this al-Qaeda, which is a sworn enemy of our country.
Myths & Facts About the Detainee Provisions
The Obama Administration, with some Senate Democrats as their proxy, has launched several misleading arguments against these sections of the bill. The arguments are undermined by Supreme Court precedent, past practice, or common sense.
Myth: Section 1031 is inconsistent with the AUMF and Constitution “because it would authorize the indefinite detention of American citizens without charge or trial.”
Fact: First, the Supreme Court has already rejected this argument against Section 1031, when it held in the Hamdi case the detention of enemy combatants without the prospect of criminal charges or trial until the end of hostilities to be proper under the AUMF and the Constitution as long as there is a procedure in place for prisoners to challenge their classification as an enemy combatant. Those procedures currently exist. Notably, the person challenging his detention in that case was a U.S. citizen.
Justice O’Connor specifically took on detainee Hamdi’s argument that he was subject to indefinite detention without criminal charge, acknowledging the possibility that “Hamdi’s detention could last for the rest of his life.” She found this to be of no moment, however, because longstanding law-of-war principles authorize the detention of enemy combatants “for the duration of the relevant conflict.”
Second, the true animating purpose of the section is to reaffirm the President’s authority to detain terrorists. Its definition as to who is authorized to be detained is taken essentially verbatim from the Obama Administration Justice Department’s legal briefs submitted in Guantanamo detainee habeas cases arguing who the President is authorized to detain under the law of war. Section 1031 is current Administration policy as held lawful by the Supreme Court.
Military commissions have been used throughout our nation’s history to prosecute enemy combatants. For example, George Washington used a military commission to prosecute British spy John Andre for conspiring with Benedict Arnold. President Roosevelt used them to prosecute German saboteurs who had infiltrated the United States during World War II. In that case, the enemy alien saboteurs prosecuted in a military commission were captured on U.S. soil and included among them at least one U.S. citizen. The decision to prosecute al Qaeda terrorists in a military commission rather than in a federal criminal court is supported by history and national security.
Myth: Cases involving terrorists captured on U.S. soil being transferred to military custody have “spawned extensive litigation and raised major statutory and constitutional questions concerning the legality of the government’s actions.”
Fact: Jose Padilla, an American citizen al Qaeda terrorist captured on U.S. soil, did challenge the legality of his military detention. The final judicial pronouncement was that the President possessed all the authority he needed to hold in military custody a U.S. citizen enemy combatant taken into custody in the United States. The detainee provisions of the defense authorization bill reaffirms that position, and the legal authority for them is sound.
Myth: It is a “bragging right” for the United States that more than 400 have terrorists have been tried in federal court since September 11, while only six military commission cases have been concluded.
Fact: First, the idea that treating terrorists like criminals by trying them in the civilian justice system will increase America’s standing in world opinion is demonstrably false. As former Attorney General Mukasey has noted: “[W]e did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania. In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without.”
Second, the threat posed by many of the 400 people tried in civilian court—many of whom faced only immigration or false document offenses17 —is simply not comparable to the worst of the terrorists at Guantanamo, such as Khalid Sheikh Mohammad and his co-conspirators. It proves too much to cite the terrorist prosecutions in civilian criminal court as demonstrating the federal criminal system has a history of handling terrorism trials akin to that of the September 11 attacks.
Third, not all the experiences with terrorists in the civilian criminal justice system are worth repeating. Ahmed Ghailani, for example, was acquitted of all but one of the 285 charges brought against him in the civilian criminal justice system in connection with his participation in the 1998 East Africa Embassy bombings. There is also the case of Abdul Farouk Abdulmuttalab, the so-called Underwear Bomber, who was given Miranda rights and promptly stopped cooperating with investigators until his parents were found overseas and brought to the United States to talk their son into cooperating again. It surely cannot be a counterterrorism practice worth repeating in the war against al Qaeda to tell terrorists they have a right to remain silent, then rely on the terrorist’s parents to cajole him into revealing intelligence information that could protect the American homeland from future attack
Fourth, the number of military commission trials has been small, mainly because President Obama, as one of his first acts in office, put every military commission case on hold.19 This includes halting the military commission trial of Khalid Sheikh Mohammad, who had offered to plead guilty in a commission. The President finally re-commenced the cases in 2011, meaning no military commission cases were allowed to proceed for more than two years.
The argument that the civilian criminal justice system is somehow inherently superior to the military commission system does not withstand scrutiny, and does not justify the Obama Administration’s reflexive policy to treat terrorists as common criminals, as demonstrated by its reticence to use military commissions.
Myth: The bill will deprive the Administration of the flexibility it needs in terrorism matters.
Fact: S. 1867 gives the President ample authority to waive the detainee provisions if the Administration would prefer to confer upon operational al Qaeda terrorists the full range of Constitutional rights available to U.S. citizens in civilian criminal courts.
Of course, the way the Obama Administration has used such flexibility does not instill confidence. Bringing Ahmed Warsame to the United States this past summer is just the latest in a trend of avoiding the military detention system. The same approach was attempted with Khalid Sheikh Mohammad and his co-conspirators, as well as done with Ahmed Ghalani for his participation in the 1998 East Africa Embassy bombings.
Dec 01 2011
Even though it has been a week since Thanksgiving, memories of the delicious dinner my family and I had to celebrate the holiday remain. I bet they do for you as well. In fact, if you are like me, you may be regretting the amount of turkey and stuffing you had. I’m pretty sure that one meal will have a lasting effect on my waistline.
But as this CNN story highlights, for some Arkansans, Thanksgiving was not a day of feasting. In fact, for these individuals and families, avoiding going to sleep hungry is a daily struggle.
Ken Kupchick, marketing director for the River Valley Regional Food Bank in Fort Smith told CNN some heart-wrenching stories that they have encountered in Arkansas’s second largest city. Ken spoke of a mother who used to volunteer at a food pantry and is now in need of the organization’s services due to mounting medical bills for her children. He recounted a story of an elderly lady who went from financial security to sorting through the dumpster garbage at the local grocery store after her husband passed away and her monthly income disappeared.
I encourage you to read the CNN report as it is quite an eye-opening piece.
The hunger crisis is not just something that is happening in countries most of us will never set foot in. Yes, we see those images on the nightly news, but the reality is we don’t have to go far to see that hunger exists here.
According to recent studies, hunger is a struggle for one in six Americans and many of those suffering from food insecurities are children. The most recent data from the United States Department of Agriculture shows that Arkansas has the lowest food security and at has the worst rate of childhood hunger in the nation with nearly 25 percent of Arkansas kids going to bed hungry. The difficult economic times our country is facing only serves to exasperate the situation for these Americans.
The positive news is that each of us can help but an end to it.
In Congress, a bipartisan coalition of Senators committed to fighting hunger and food insecurity are working to raise awareness and resources to address hunger issues both here at home and around the world. As co-chair of the Hunger Caucus, I am a proud supporter of our latest initiative—the “Hour for Hunger”—which encourages Members of Congress to commit one hour of their time during the holidays to help raise awareness and put an end to hunger in their communities.
Washington alone cannot cure our nation’s hunger problems. It will take a concerted effort in our states, cities and communities. There is a part for us all to play in fight. Please consider making a donation to a hunger-relief organization, like a centralized food bank, or a food pantry at your church this holiday season.
Dec 01 2011
Today the Senate Committee on Agriculture, Nutrition and Forestry held a hearing on the continuing oversight of the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Hon. Gary Gensler, Chairman of the Commodity Futures Trading Commission and the Hon. Mary Schapiro, Chairman of the Securities and Exchange Commission testified before the committee.
While the hearing was to provide oversight implementation to Dodd-Frank, much of the hearing centered around the recent failure of financial MF Global.
Senator Boozman questioned Chairmen Gensler and Schapiro regarding the nature, and possible criminality of the recent collapse of MF Global that left thousands of investors, famers, ranchers and small business owners without access to hundreds of millions of dollars.
The Ag committee has oversight jurisdiction over Title VII of Dodd-Frank, which governs commodities and futures trading.
Nov 30 2011
The supercommittee’s failure to reach an agreement on how to cut the nation’s debt by at least $1.2 trillion is forcing credit rating agencies to rethink our government’s AAA rating.
Earlier this week, Fitch Ratings placed our AAA credit rating on a “negative outlook,” and warned that if the government doesn’t develop a plan that tackles our budget deficit, our rating will be downgraded within the next two years.
"The negative outlook reflects Fitch's declining confidence that timely fiscal measures necessary to place U.S. public finances on a sustainable path and secure the U.S. AAA sovereign rating will be forthcoming,” the agency said in a statement.
This comes on the heels of a Standard & Poor’s downgrade this summer and a week after Moody’s Investors Service affirmed its negative outlook on our nation’s credit.
The bottom line is that we can’t continue kicking the can down the road to deal with our financial problems in future years. The supercommittee was given the task to rein in spending and balance our budget and unfortunately they came up empty handed. We are in a dire situation where we must work to cut our costs or face the consequences that will cost us all even more.
'From the Mailbag'
Nov 21 2011
Senator Boozman answers questions about what Congress is doing to help with private sector job creation, the President's proposal for job creation and Social Security and Medicare in this edition of 'From the Mailbag.'
Nov 18 2011
Our nation’s unsustainable spending spree forces our national debt higher by the second, so it shouldn’t come as a surprise that it hit $15 trillion this week. Still, seeing that number in print is alarming to say the least.
It is a very stark reminder that Washington has spending problem, not a revenue problem. If you don’t believe me, take a look at the figures. Since President Obama took office in January of 2009, our national debt has increased by close to four and half trillion dollars in less than three years.
We borrow around 37 cents of every dollar we spend. This year alone, the federal government will spend $3.7 trillion while only collecting $2.2 trillion.
This is further evidence that the Super Committee needs to be bold with their plan to rein to federal spending. And that is exactly what it is going to take. We cannot tax our way out of this mess. There simply are not enough “revenue” sources to scrounge up $15 trillion from the couch cushions. We absolutely have to cut spending if we hope to make a dent in the enormous dent our national debt.
This is what makes the task before the Super Committee of such vital importance. If we fail to address this crisis, our country risks going the direction of Greece, Ireland and Portugal—who each face economic crises that have pushed them to brink of default.
As we quickly approach the November 23rd deadline, the word most associated with the Super Committee has been “standstill.” However, I remain confident that they will put forth a meaningful proposal to address this crisis. As days become hours and we get into crunch time, necessity creates an environment that fosters an agreement. I can assure you the members of the Super Committee will work, in good faith, up to the very last minute to reach an agreement. The stakes are too high not to.
Nov 14 2011
In August I cosigned a letter to Senate leadership asking that the new joint congressional committee created by the Budget Control Act, more commonly referred to as the super committee, be open to the public and available for television broadcast. We also introduced the Budget Control Joint Committee Transparency Act (S.1501), that would mandate proceedings of the Joint Committee on Deficit Reduction be transparent and open to the public.
The first steps of members of the super committee seemed to outline a plan that allowed for disclosure to the American people, but since then, much of these discussions have been held behind closed doors with little to no transparency.
With less than 10 days until the super committee has to introduce its deal, I am concerned with the secrecy and there are calls for the members to let the public in to understand where negotiations stand.
This editorial published by the Washington Examiner urges the super committee to open its doors, as they should have been from the start, and provide transparency to this process that will have a big impact on the lives of all Americans.
Nov 10 2011
236 years ago, the rich tradition of sacrifice, service, and fidelity to nation of the United States Marine Corps was born. It was on this date in 1775 that the Continental Congress passed a resolution calling for two battalions of Marines able to fight for independence at sea and on shore. Dubbed the Continental Marines, the battalions were quickly thrust into action successfully executing their first amphibious landing on a hostile shore.
Today’s Marine Corps is ready to respond on the ground, in the air and by sea. Their integrated approach means the Marines are often the first on the scene, earning them the reputation as “America’s 911 Force” — our nation’s first line of defense.
To a Marine, "always faithful" is more than a motto, it is a way of life. Marines remain faithful to the mission at hand, to each other, to the Corps and to country, no matter what. Because of their commitment, we are a stronger and safer nation.
Happy birthday and Semper Fi, Marines. We thank you and all our veterans from every branch of our armed forces for your service and sacrifice.
Nov 10 2011
During my monthly interview on KASU I talked with Mark Smith about the supercommittee and debt reduction, infrastructure, Veterans Day and many more of today's top issues. If you missed it, you can listen to the interview here.