The National Defense Authorization Act for next year has been met with criticism by civil liberties organizations for provisions that they say would allow American citizens suspected of terrorist activities to be detained indefinitely. As the House and Senate work on versions of the bill, President Obama has quietly withdrawn a veto threat for the legislation — something he campaigned on as a presidential candidate in 2008. A Gallup from August shows that 71 percent of Americans believe basic civil liberties should not be violated, even if doing so would prevent terrorist attacks.
For two opposing views on NDAA, The Takeaway speaks to two congressmen who voted for and against the bill. Congressman Hank Johnson, who represents Georgia’s 4th congressional district, has lobbied against next year's NDAA because of his concerns about its infringement on Americans' civil liberties. Congressman Tim Griffin, who represents Arkansas' 2nd congressional district, has dismissed this as misinformation.
Read a transcript of the conversation below:
HOCKENBERRY: Democratic Congressman Hank Johnson representing Georgia’s 4th district, what was your vote on Wednesday?
JOHNSON: My vote was no.
HOCKENBERRY: Thank you Congressman for joining us and Republican Congressman Tim Griffin, what was your vote on Wednesday?
HOCKENBERRY: So Congressman Griffin, Congressman Johnson, give us a report of the debate and how important this principle of detention of suspects – even if they are Americans – is to this bill. Congressman Johnson, you begin.
JOHNSON: I think it’s fundamental in America that Americans have protection under the United States Constitution, which provides for due process. It provides for notice and hearing against any charge that might be leveled against someone. You have to show probable cause. So there’s a menu of procedural benefits that are due to Americans quit simply because that’s the way our system operates. This legislation chips away at those rights. I think that’s not good for Americans’ future.
HOCKENBERRY: Congressman Griffin?
GRIFFIN: I haven’t been here that long; I just got here in January. I have not seen a proposal or a bill that has more misinformation associated with it than this one. The bottom line is this: under the Hamdi case, which is a 2004 U.S. Supreme Court case, Hamdi v. Rumsfeld. There we had a U.S. citizen that was captured overseas, fighting against the U.S., and that person was held in military custody on U.S. soil. The Supreme Court says that’s fine, but this individual, this citizen, has their constitutional rights, as they should. This citizen can challenge under habeas corpus the fact that they are detained. They should be able to do that. Those are the rights that my colleague is referring to. Those rights aren’t affected. This bill takes a lot of the language that has come out of court cases and it says we’re going to clarify it and put it into law so that this is not fluctuating with the whims of the court. We often say it’s better when congress makes the laws and not the courts. This is an example where the law is out there. This is not changing anything with regards to constitutionality.
HOCKENBERRY: All right Congressman Griffin just a little follow up there… do you think it’s okay that Hamdi was in jail for years before he got his day in court before the U.S. Supreme Court. It’s all right for American citizens to be held for seven, eight years? Is that what you are clarifying?
GRIFFIN: No I don’t think that’s all right. The court made it clear. Whether we clarified it or not, that is now clarified and it was clarified by the Supreme Court. They do have a right to habeas corpus.
HOCKENBERRY: To Congressman Johnson: President Obama, it seems, has backed away from your view, why do you think there is no veto threat on this bill anymore, and why do you think the bill that goes to the president’s desk will have these provisions that you find so offensive?
JOHNSON: This bill legislatively confirms what the Supreme Court has already ruled in the case of Hamdi v. Rumsfeld. What that ruling stands for, in addition to what Congressman Griffin stated, was the fact that if you are not held on U.S. soil, and you are an American captured abroad, and thought to be involved in terrorist-related activities, you can be held outside of this country without any habeas corpus rights.
HOCKENBERRY: Do you agree Congressman Griffin that as Congressman Johnson suggests, U.S. citizens can be held in an extraordinary rendition status indefinitely overseas?
GRIFFIN: I’d say a couple of things. First of all, we’re talking about the NDAA. The NDAA does not create any rights. It does not address this particular situation. I should say that the Supreme Court did deal with a U.S. citizen enemy combatant who was picked up overseas and held in the U.S. The U.S. Supreme Court has never addressed a case of an enemy combatant U.S. citizen picked up on U.S. soil, number one, or a U.S. enemy combatant picked up overseas and held overseas. Those two instances have never been address by the Supreme Court. The NDAA has absolutely, positively nothing to say about them. Most of the confusion that I have heard relates to the use of the word “requirement.” Under Section 10.22, there’s a part that says “the requirement to detain a person in military custody under this section does not extend to citizens of the United States.” It makes it clear it does not. Some folks have read that to mean that the requirement doesn’t, but it’s an option. That is completely wrong. This whole section is titled “Military Custody for Foreign Al-Qaida Terrorists.” There is nothing in this Section 10.22 that people have gotten so worked up about. Nothing that relates to taking citizens.
HOCKENBERRY: That’s Congressman Tim Griffin of the 2nd district of Arkansas. Congressman Hank Johnson, quickly, the last word?
JOHNSON: This congressman, respectfully, he’s getting things mixed up. There are two provisions: the Indefinite Military Prevention Provision, and also, the second provision giving the military primary responsibility for custody.
HOCKENBERRY: Congressman Johnson, we are going to allow you to clarify that in a moment after a short break. Stay with us.
HOCKENBERRY: Continuing now with Congressman Johnson and Griffin on the Defense Authorization bill which contains provision that would empower the Justice Department’s intelligence organizations to hold terrorist suspects indefinitely. Congressman Johnson, clarify what you were saying about the specific provisions, and then I want to get a sum-up here.
JOHNSON: There are two provisions that I found objectionable. We referred to one of them here, and that was that indefinite military prevention allowance for Americans who are captured abroad and thought to be involved in terrorist activities. I firmly disagree with that Supreme Court decision and this legislation that codifies it. Secondly we have the issue of prosecution of U.S. terrorists will take place in the American judicial system or whether or not that will be diverted to the U.S. military system, and I disagree with that.
HOCKENBERRY: Those details are all linked to on our site thetakeaway.org. Congressman Tim Griffin, you’ve got 40 seconds, we’ll give you the last word here.
GRIFFIN: I would say that with regard to military commission, the law on that is clear that that does not deal with U.S. citizens. Secondly my colleague indicates that he disagrees with the U.S. Supreme Court on Hamdi, that’s fine. That’s his right to disagree with that case. But this law does not in any way affect this Supreme Court case.
HOCKENBERRY: Gentlemen thanks for giving us a feel on the debate over the Defense Authorization bill. It’s supposed to fund the Pentagon but it’s also got these principles of justice. Congressman Hank Johnson, Democratic Congressman from Georgia, and Congressman Tim Griffin representing Arkansas, thanks so much.
GRIFFIN: Thank you.
JOHNSON: Thank you.