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Levin: Let’s Not Let the Constitution Get in the Way of Indefinite Detention

Not every politician is great on every issue, granted. But with Carl Levin of late, there’s been quite a swing. On the one hand, his Permanent Subcommittee for Investigations delivered Goldman Sachs on a silver platter to the Justice Department (it’s currently sitting in a conference room, untouched). He has jumped on JPMorgan Chase’s massive trading loss to argue for a tightening of the Volcker rule he co-authored. On the other hand, he sees no need to change an indefinite detention law that has been ruled unconstitutional by a federal district court judge:

“I don’t think we need any [changes],” Levin said, insisting, as administration lawyers did in court, that the measure did nothing new and was merely an affirmation of existing law. “I don’t know of any clarifying language. How much clearer can you be than the law, which says we’re not changing the law?”

Levin was referring to a part of the provision — in Section 1021 of the law — that says it shall not be construed to affect existing law.

But (Judge Katherine) Forrest disagreed, writing that 1021 “is not merely an ‘affirmation’ of the [Authorization to Use Military Force]. To so hold would be contrary to basic principles of legislative interpretation that require Congressional enactments to be given independent meaning.”

Now that’s stubbornness. Not only does Levin dismiss the constitutional problem brought up by Judge Forrest, he doesn’t acknowledge that the law changed in any way! That’s called not taking credit for your actions.

At the designed-in-1996 Senate Armed Services Committee website, I see that the markups for the NDAA were closed to the public. Because the last thing we need is transparency when we’re talking about indefinite detention. The belief was that Dianne Feinstein and Mark Udall were going to introduce amendments, similar to the ones introduced in the House, that would exempt US citizens from indefinite detention (or in Udall’s case, all people in the United States, as the Constitution applies to persons and not just citizens), but only Udall is on the committee, and as said, the hearing was closed. So we’ll have to see what happens on the Senate floor. And if Levin is any indication, the opinions of a federal judge aren’t going to matter much there.

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David Dayen

David Dayen