The Daily Caller

The Daily Caller

Levin and McCain are deaf to Madison’s warning

Photo of Bruce Fein
Bruce Fein
Constitutional Lawyer

James Madison warned that “the means of defense against foreign danger historically have become instruments of tyranny at home.”

Senators Carl Levin and John McCain are ignoring Madison’s admonition. The senators are defending the 2012 defense authorization bill, which would arm the military with the authority to detain indefinitely without accusation or trial suspected al Qaida sympathizers, including American citizens apprehended on American soil. That alarming arbitrary power is reminiscent of Egypt’s “permanent” Emergency Law, which authorized preventive indefinite detention, provoking ordinary Egyptians to self-immolate last spring. It’s a throwback to Reconstruction, when the military ruled the Southern states.

The bill is anchored to the false premise that pre-9/11 strategies for apprehending, prosecuting and convicting international terrorists were deficient. Congress long ago made it a crime to provide or conspire to provide material assistance — which includes legal or political advice, education, books and virtually anything of value — to al Qaida or any other listed foreign terrorist organization. The Supreme Court sustained the constitutionality of this sweeping prohibition in Humanitarian Law Project v. Holder.

The material assistance law is forward-looking and preventive, not backward-looking and reactive. Al Qaida adherents may be detained, prosecuted and convicted for conspiring to violate the material assistance prohibition before injuring an American. Jose Padilla, for instance, was convicted and sentenced to 17 years in prison for conspiring to provide material assistance to al Qaida. The criminal law does not require dead bodies on the sidewalk before it strikes at international terrorism. Indeed, conspiracy law and prosecutions in civilian courts have been routinely invoked after 9/11 to thwart embryonic international terrorism.

Shortly after 9/11, Michael Chertoff, who at the time was the head of the Justice Department’s Criminal Division and later became the secretary of the Department of Homeland Security, testified before the Senate Judiciary Committee. During his testimony, he underscored that “the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.” The Classified Information Procedures Act typically enables the government to prosecute international terrorism cases without disclosing classified information.

Moreover, there is not a crumb of evidence that criminal justice Miranda warnings have frustrated intelligence collection about international terrorism. Suspected terrorists ordinarily waive both the right to an attorney and the right to silence. Additionally, Miranda warnings are not required at all when the purpose of interrogation is public safety.

Senators Levin and McCain claim that the defense authorization bill would not enlarge the universe of detainees eligible for indefinite detention in military custody. That’s not true. The current authorization to use military force confines the universe of detainees eligible for indefinite detention to people who have either been implicated in the 9/11 attacks or harbored people who were implicated in the 9/11 attacks. The Levin-McCain version would expand the universe to include any person said to be “part of” or “substantially” supportive of al Qaida or the Taliban. These terms are dangerously vague.