Senator: "Shut up, you don't get a lawyer."

Josh_R

Registered User
Jan 29, 2005
5,847
458
578
Akron, Ohio
#1
Guantánamo for US citizens? Senate bill raises questions
The National Defense Authorization Act passed by the Senate this week could allow the US military to detain American citizens indefinitely. Civil libertarians are alarmed, and President Obama says he might veto it.


“It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”

Senate Armed Services Committee Chairman Carl Levin (D) of Michigan (liberal on most issues and a friend of the Obama administration) and senior Republican committee member Sen. John McCain of Arizona forcefully argued for the bill.

"Al Qaeda is at war with us," said Sen. Levin. "They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said, and I am going to read these words again, 'There is no bar to this nation's holding one of its own citizens as an enemy combatant.'"

This coming Monday, a tea party group plans to protest in Sen. McCain’s home state.

“When it comes to personal liberty and violation of every citizen’s Constitutional rights, Republicans are willing to take a stand against one of their own if a major mistake has been made," says protest organizer Jeff Bales, a member of the Pima County, Arizona, Republican Executive Committee.

"'Innocent until proven guilty' is essential to our legal system and American way of life,” says Mr. Bales. “The Senate Armed Services Committee's legislation violates fundamental values. It is unconstitutional and must be defeated. We cannot allow America to go further down the road of becoming a police state.”

Some opponents of the new proposal are raising the Posse Comitatus Act of 1878, which restricts the use of military forces in domestic law enforcement.

The Obama administration “strongly objects” to the military custody provision, the White House said in a statement Friday. “It would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

But the basis for the veto threat is not so much concern for civil liberties as it is for presidential power in such cases.

"Counterterrorism officials from the Republican and Democratic administrations have said that the language in this bill would jeopardize national security by restricting flexibility in our fight against Al Qaeda," White House press secretary Jay Carney said. “By ignoring these non-partisan recommendations, including the recommendations of the secretary of defense, the director of the FBI, the director of national intelligence, and the attorney general, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy.”
http://www.csmonitor.com/USA/Justic...itizens-Senate-bill-raises-questions/(page)/2

The Senate’s Unconstitutional Support for Indefinite Detention
The government should not be allowed to imprison people indefinitely.

Sheldon Richman | December 5, 2011

Permit me to state the obvious: The government shouldn’t be allowed to imprison people indefinitely without charge or trial. It shouldn’t be necessary to say this nearly 800 years after Magna Carta was signed and over 200 years after the Fifth Amendment was ratified.

Yet this uncomplicated principle, which is within the understanding of a child, is apparently lost on a majority in the U.S. Senate. Last week the Senate voted 61-37 in effect to authorize the executive branch to use the military to capture and hold American citizens indefinitely without trial—perhaps at Guantanamo—if they are merely suspected of involvement with a terrorist or related organization—and even if their suspected activity took place on U.S. soil.

The provision, which is included in the National Defense Authorization Act, was drafted without a public hearing by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.). Sen. Mark Udall (D- Colo.) sponsored an amendment to remove the power, but the amendment was defeated. A related provision requires that terrorism suspects who are not citizens be held by the military rather than being tried in a civilian criminal court. (The executive branch can waive this requirement after certifying to Congress that the waiver is a matter of national security.)

The right of habeas corpus is preserved for citizens, but this is the barest minimal protection of a suspect’s rights.

The act passed last Friday (December 2) and has to be reconciled with the House version.

Undermining Criminal Justice

What we have here is a shameful move to further undermine two or more pillars of the traditional American criminal justice system (to the extent it still exists). Suspects are just that: suspects. Before being imprisoned, they are entitled to notice of the charges and a proper trial before a jury in which the government has the burden of proof.

Moreover, the United States has an old principle of law that severely restricts the military’s involvement in domestic law enforcement. As Gene Healy of the Cato Institute notes, the 1887 Posse Comitatus Act sets “a high bar for the use of federal troops in a policing role. That reflects America’s traditional distrust of using standing armies to enforce order at home, a distrust that’s well-justified.” (See Healy’s Freeman article “Blurring the Civilian-Military Line.”)
Some downplay the significance of the Levin-McCain provision because it merely would codify powers already exercised by Presidents Obama and George W. Bush. Perhaps. But these are powers no president should have ever possessed. So they shouldn’t enshrined in law.

Udall says the provision goes further than mere codification: “[T]he secretary of defense, the directors of national intelligence and the FBI, and the White House—along with numerous defense experts—have said this would amount to a significant expansion of the military’s detention authority. . . . These changes to our laws would also authorize the military to exercise unprecedented power on U.S. soil.”

Regardless, make no mistake about the scope of the provision: “[T]he statement of authority to detain does apply to American citizens and it designates the world as the battlefield, including the homeland,” said Sen. Lindsey Graham (R-S.C.) in defense of the provision.

Veto Possible

The White House suggested a veto of the bill is possible because of the detainee provisions. According to a White House statement:

[A]pplying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

This could be a cover for other objections, such as restrictions on presidential power. After all, Obama has never forsworn the power to treat Americans the barbaric way José Padilla, an American citizen, was treated by the Bush administration. Indeed, Obama claims the power to execute American citizens without due process—and has done so in the case of Anwar al-Awlaki. Still, a veto is a veto.

Sen. Rand Paul (R-Ky.) made his own attempt to kill the detention section. (In this video of his Senate speech, he explains why such power is both wrong and unnecessary.) “Should we err today and remove some of the most important checks on state power in the name of fighting terrorism,” Paul said, “well then the terrorists have won…. [D]etaining American citizens without a court trial is not American.”
Paul also helped kill an amendment that would have permitted the indefinite detention of an American citizen accused of terrorism even after acquittal at trial.

Rep. Justin Amash (R-Mich.), called the provision “one of the most anti-liberty pieces of legislation of our lifetime.”

Levin and McCain answered their critics in a Washington Post op-ed, writing, “[T]he administration has broad authority to decide who is covered by this provision and how and when such a decision is made.”

Are we supposed to be comforted by unchecked presidential discretion? As I recall, the American revolution had something to do with an objection to arbitrary power.

“Essentially,” writes Andrew Napolitano, “this legislation would enable the president to divert from the criminal justice system, and thus to divert from the protections of the Constitution, any person he pleases.”

Crime or Act of War?

Should terrorism be handled as a criminal act or an act of war? Those who know government’s inherent threat to individual freedom must insist on the former, if for no other reason than that, under cover of war, government can always be counted on to assume tyrannical powers, as it has since September 11, 2001. Perpetual war—in which America itself is considered a battlefield—is hardly conducive to liberty of any kind.

“No nation could preserve its freedom in the midst of continual warfare,” James Madison said.

The free market, and the free society in general, cannot be understood without also understanding their indispensable political, legal, and moral conditions. Freedom from government whim is one of those conditions, despite its inconvenience for those who lust after power.
http://reason.com/archives/2011/12/05/the-senates-unconstitutional-support-for

Indefinite Detention and American Citizens
Government should not have unlimited power to detain citizens without a jury trial.

I, like most Americans, want to ensure that we punish and prevent terrorism. However, we must do so in a way that protects the rights of American citizens. In his recent column, Andrew C. McCarthy simply has his facts wrong when he claims that last week’s Senate debate on the 2012 defense-authorization bill was not about American citizens. It was.

In fact, the protection of American citizens is largely what my energies last week were directed toward. The amendments I championed — both Sen. Mark Udall’s (D., Colo.) and Sen. Dianne Feinstein’s (D., Calif.) — were specifically offered in order to protect American citizens from the indefinite detention allowed in the underlying bill. All of these amendments failed, but I was able to defeat an amendment that would have allowed American citizens to be held indefinitely even after they had been tried and found not guilty.

At no time did I argue that aliens should be given the same rights as American citizens. That was not the basis of the debate of any amendment last week. Yet Mr. McCarthy uses this strawman throughout his article. When the facts are presented clearly to Americans — that their own rights and liberties are threatened under this sort of unchecked, unconstitutional executive authority — I believe they will side with keeping their liberty.
Supporters of indefinite detention believe the U.S. Supreme Court’s decision in Hamdi v. Rumsfeld supports their view. But while the court in Hamdi held that U.S. citizens captured in combat in Afghanistan may be detained, it also held that they must, at a minimum, be granted many of the traditional aspects of constitutional due process — including a “meaningful opportunity to contest the factual basis for th[e] detention before a neutral decisionmaker,” notice of the asserted charges, an opportunity to rebut the assertions, and, most important, the right to counsel.

Also, the court’s holding pertained only to U.S. citizens captured in combat in Afghanistan. Hamdi does not address non-combatants captured in the United States. The argument in Congress this week was about whether we should expand the possibility of indefinite detention to include U.S. citizens accused of association with terrorism. This could conceivably apply to non-combatants. This could also conceivably include U.S. citizens falsely accused of association with terrorism.

If you allow the government the unlimited power to detain citizens without a jury trial, you are exposing yourself to the whim of those in power. That is a dangerous game.

The FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of “Meals Ready to Eat,” weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color. I fear that such suspicions might one day be used to imprison a U.S. citizen indefinitely without trial. Just this year, the vice president referred to the Tea Party as a bunch of terrorists. So, I think we should be cautious in granting the power to detain without trial.

Nevertheless, Mr. McCarthy avers that presidents are “highly unlikely to abuse this particular power.” I am more of the Madison persuasion than Mr. McCarthy; I am worried that since governments are not constituted of angels, we must take care to restrain government with specific rules of conduct.
I am very conscious of the fact that the battlefield is not a place to read Miranda rights. In my recent opposition to detaining U.S. citizens, I specifically emphasized that my statement referred to citizens apprehended in the U.S., and not on the battlefield.

In the 1942 case Ex parte Quirin, the Court cited, and did not criticize, the government’s assertion that the one detained German alleged to be a naturalized U.S. citizen may have given up his citizenship by taking up arms against the United States. I tend to agree that taking up arms indicates a renunciation of citizenship. I have informed Sen. Lindsey Graham (R., S.C.) that I support legislation that would clarify when a citizen’s actions may cause him or her to lose citizenship, and I will work to give this debate more clarity.
It is important to remember that civil liberties need defenders. The Bush administration in Hamdi argued for indefinite detention of a U.S. citizen without even the minimum requirements of due process. Bush lost. The court held that the executive branch does not have unlimited power to indefinitely detain U.S. citizens, and that citizens must be afforded basic due-process protections.

This debate is an important one, but it must begin with facts, not inaccurate accusations. Contrary to McCarthy’s assertions, I do not argue for giving alien enemies constitutional protections. I do, however, argue for preserving U.S. citizens’ constitutional rights.

Some conservatives may choose to trust the government to always do the right thing, but I fear the day when leaders come to power who would abuse that power. Therefore, I will continue to fight for limitations on it.
http://www.nationalreview.com/artic...tion-and-american-citizens-sen-rand-paul?pg=2

tl;dr : The Senate passed a provision that would allow for the INDEFINITE military detention of American citizens who are SUSPECTED of association with terrorists/terrorist activity, without a trial, even if they are non-combatants who are captured in America (not on a foreign battlefield). Needless to say, this completely eradicates the Fifth Amendment.
 

whiskeyguy

PR representative for Drunk Whiskeyguy.
Donator
Jan 12, 2010
36,352
21,972
398
Northern California
#2
tl;dr : The Senate passed a provision that would allow for the INDEFINITE military detention of American citizens who are SUSPECTED of association with terrorists/terrorist activity, without a trial, even if they are non-combatants who are captured in America (not on a foreign battlefield). Needless to say, this completely eradicates the Fifth Amendment.
So fucked up. I may understand if someone joined a foreign army abroad and waged war against us, but no way is this constitutional when it applied to citizens within our borders.
 

d0uche_n0zzle

**Negative_Creep**
Sep 15, 2004
46,673
6,860
693
F.U.B.A.R
#3
Just because they pass a law does not make it constitutional.
 

Josh_R

Registered User
Jan 29, 2005
5,847
458
578
Akron, Ohio
#4
Just because they pass a law does not make it constitutional.
It does until someone collects up the money to pay lawyers to fight it all the way through the system to the Supreme Court and HOPE it gets defeated. Who would have guessed that somehow growing your own wheat to make your own bread could somehow fall under INTERSTATE commerce, or that growing marijuana in your own house for your own use ant never selling it to anyone somehow became the business of the federal government?
 

Norm Stansfield

私は亀が好きだ。
Mar 17, 2009
15,949
4,075
328
#6
So fucked up. I may understand if someone joined a foreign army abroad and waged war against us, but no way is this constitutional when it applied to citizens within our borders.
I don't get that logic. Why would a traitor who is fighting the US right here have his habeas corpus rights (the right to petition a federal court for a writ of habeas corpus), and a traitor who is fighting abroad not?

Either way, the Constitution does not make that differentiation, it allows the government to suspend the habeas corpus rights of all traitors and enemy combatants, whether captured here or abroad.

tl;dr : The Senate passed a provision that would allow for the INDEFINITE military detention of American citizens who are SUSPECTED of association with terrorists/terrorist activity, without a trial, even if they are non-combatants who are captured in America (not on a foreign battlefield). Needless to say, this completely eradicates the Fifth Amendment.
That's not a summation, that's an editorialization, with a couple of false claims thrown in for effect. The law would only deprive captured enemy combatants of a civil trial, not a military one. And it's also false that that they would only have to be suspected of terrorist involvement. The standards of knowledge of said involvement would be different from those in the federal court system, because we are at war, and in war standards of certainty have to be different. But the military and the intelligence services do still have standards, beyond just "suspicion", and they do still have oversight (within the military and the CIA, and above it in Congress).

In conclusion, here's the actual tl;dr version:

The Senate passed a provision that would allow for the lawful military detention of American citizens who betray the nation in the war against Islamic terrorism, and deny them access to civilian courts for the duration of the conflict. This is perfectly in concordance with the provisions of the US Constitution, as well as established precedent throughout US history, regarding the treatment of traitors in war.
 

Don the Radio Guy

G-Bb-A-D
Donator
Mar 30, 2006
69,628
5,081
568
Wyoming
#7
I really wish they'd just extend normal rights to combatants captured on American soil for expediency reasons, but Norm is right, it's not unconstitutional. The ones captured fighting on foreign battlefields? Fuck 'em.
 

Norm Stansfield

私は亀が好きだ。
Mar 17, 2009
15,949
4,075
328
#8
I would just like to add that I hate the idea of an indefinite war as much as anyone. But the main reason why this fucking war is still going on is the constant whining, both from Liberals and Libertarians, about our methods and means of fighting, the questioning of the need for the war in the first place and even the moral justification for it. That's what caused both Presidents and the military leadership to fight a half assed war that's never going to end.

If this war was fought on terms hawkish conservatives in this country would be willing to fight it on, if left alone by everyone else, it would've been won already.
 

mascan42

Registered User
Aug 26, 2002
18,725
5,601
768
Ronkonkoma, Long Island
#9
The Senate passed a provision that would allow for the lawful military detention of American citizens who betray the nation in the war against Islamic terrorism, and deny them access to civilian courts for the duration of the conflict. This is perfectly in concordance with the provisions of the US Constitution, as well as established precedent throughout US history, regarding the treatment of traitors in war.
I really wish they'd just extend normal rights to combatants captured on American soil for expediency reasons, but Norm is right, it's not unconstitutional. The ones captured fighting on foreign battlefields? Fuck 'em.
If this war was fought on terms hawkish conservatives in this country would be willing to fight it on, if left alone by everyone else, it would've been won already.
Came looking for rational debate; left disappointed.
 

Don the Radio Guy

G-Bb-A-D
Donator
Mar 30, 2006
69,628
5,081
568
Wyoming
#10
Came looking for rational debate; left disappointed.
You're more than welcome to come forward with some fact based information of your own. I won't hold my breath. Instead you'll just be wrong and call everyone else mean for pointing it out.
 

Bluestreak

This space intentionally left blank.
Sep 27, 2007
4,557
276
398
Mawl-din, MA
#11
I would just like to add that I hate the idea of an indefinite war as much as anyone. But the main reason why this fucking war is still going on is the constant whining, both from Liberals and Libertarians, about our methods and means of fighting, the questioning of the need for the war in the first place and even the moral justification for it. That's what caused both Presidents and the military leadership to fight a half assed war that's never going to end.

If this war was fought on terms hawkish conservatives in this country would be willing to fight it on, if left alone by everyone else, it would've been won already.
What terms would you suggest, Senator?
 

BIV

I'm Biv Dick Black, the Over Poster.
Apr 22, 2002
78,490
27,315
898
Seattle
#13
Came looking for rational debate; left disappointed.
If facts fail to meet your standard for rational debate, you will always leave disappointed. Leave your emotions at the door son, men are talking.
 

Josh_R

Registered User
Jan 29, 2005
5,847
458
578
Akron, Ohio
#15
I would just like to add that I hate the idea of an indefinite war as much as anyone. But the main reason why this fucking war is still going on is the constant whining, both from Liberals and Libertarians, about our methods and means of fighting, the questioning of the need for the war in the first place and even the moral justification for it. That's what caused both Presidents and the military leadership to fight a half assed war that's never going to end.

If this war was fought on terms hawkish conservatives in this country would be willing to fight it on, if left alone by everyone else, it would've been won already.
You're a fucking idiot. What have libertarians been holding the military back from doing? We shouldn't question the need for the war or the moral justification for it when we were blatantly lied to about the reason for going to war? I haven't even heard a single definition of what it means to "win" the war on terrorism. As long as ANYONE in the world is willing to strap a bomb to themselves, plant an IED, or shoot up a bunch of people, there will be terrorism in the world.

From the Congressional Research Service:
The earlier version of the bill included similar language defining “covered persons,” but rather
than “affirming” detention authority under the AUMF, it directly authorized the Armed Forces to
detain covered persons “captured in the course of hostilities authorized by the [AUMF] as
unprivileged enemy belligerents,” and permitted their detention until “the end of hostilities
against the nations, organizations, and persons subject to the [AUMF].” The White House
reportedly objected to the language “captured in the course of hostilities” because it could be read
to limit detentions to those captured during military operations and not persons who are arrested
under other circumstances.

Section 1031, as revised, states that dispositions under the law of war “may include” several
options:
detention without trial until the end of hostilities authorized by the 2001 AUMF; [AKA FOREVER, since the "war on terrorism" has no end in sight]
• trial by military commission;
• transfer for trial by another court or tribunal with jurisdiction; or
transfer to the custody or control of a foreign country or foreign entity.
The provision uses the language “may include” with respect to the above options, which could be
read as permission to add other options or negate any of the listed options.
Why is it that in order to punish those suspected of supporting terrorism we need to suspend the Constitution? What is so special that Americans arrested in America for suspected crimes that took place in America do not deserve the rights protected under the Constitution? I do not believe that there is any instance where a person's Constitutional rights should be suspended. What the fuck is the point of a constitution if you can just make a law that allows you to ignore it, especially when you choose not to amend the Constitution, just simply ignore it?
 

whiskeyguy

PR representative for Drunk Whiskeyguy.
Donator
Jan 12, 2010
36,352
21,972
398
Northern California
#16
I don't get that logic. Why would a traitor who is fighting the US right here have his habeas corpus rights (the right to petition a federal court for a writ of habeas corpus), and a traitor who is fighting abroad not?

Either way, the Constitution does not make that differentiation, it allows the government to suspend the habeas corpus rights of all traitors and enemy combatants, whether captured here or abroad.
I admittedly am not fully educated when it comes to the Constitution and Habeas Corpus, but from what I understand if you're fighting on behalf of another country who is invading/attacking America, your right to Habeas Corpus can be denied. What I'm worried about is expanding that definition to sympathizing, providing funding, hateful speech, etc. I'm not saying someone who helps terrorist shouldn't be prosecuted, but I can see this being used against US Citizens who are of the survivalist types (often labeled as militias). Could this be used to hold a US Citizen from Idaho indefinitely for building an arsenal that could be used against the United States (aka collecting firearms)?

Our justice system is a reactionary one, and rightfully so. Once we get into preventative justice, rights of everyone are compromised. Military operations abroad and police operations domestically have to function differently.
 

Josh_R

Registered User
Jan 29, 2005
5,847
458
578
Akron, Ohio
#17
In conclusion, here's the actual tl;dr version:

The Senate passed a provision that would allow for the lawful military detention of American citizens who betray the nation in the war against Islamic terrorism, and deny them access to civilian courts for the duration of the conflict. This is perfectly in concordance with the provisions of the US Constitution, as well as established precedent throughout US history, regarding the treatment of traitors in war.
Nice try on your "unbiased" summation of the bill. In order for you to state that someone has "betrayed the nation", you must first prove it. That is hard to do (at least in America) without a trial where the government actually has to PROVE that you did something wrong. Apparently their word is good enough for you.

Where in the Constitution does it say that it is perfectly fine to suspend the 5th Amendment?
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
 

Josh_R

Registered User
Jan 29, 2005
5,847
458
578
Akron, Ohio
#18
I admittedly am not fully educated when it comes to the Constitution and Habeas Corpus, but from what I understand if you're fighting on behalf of another country who is invading/attacking America, your right to Habeas Corpus can be denied. What I'm worried about is expanding that definition to sympathizing, providing funding, hateful speech, etc. I'm not saying someone who helps terrorist shouldn't be prosecuted, but I can see this being used against US Citizens who are of the survivalist types (often labeled as militias). Could this be used to hold a US Citizen from Idaho indefinitely for building an arsenal that could be used against the United States (aka collecting firearms)?
That is the exact point raised by Senator Paul:
The FBI publishes characteristics of people you should report as possible terrorists. The list includes the possession of “Meals Ready to Eat,” weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color. I fear that such suspicions might one day be used to imprison a U.S. citizen indefinitely without trial. Just this year, the vice president referred to the Tea Party as a bunch of terrorists. So, I think we should be cautious in granting the power to detain without trial.
 
Jun 2, 2005
15,516
4
0
Dallas
#19
“It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” Graham said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
I wish I was running against this guy for his seat. I'd do nothing but run commercials of him saying this with my name for Senate following.
 

Josh_R

Registered User
Jan 29, 2005
5,847
458
578
Akron, Ohio
#21
I wish I was running against this guy for his seat. I'd do nothing but run commercials of him saying this with my name for Senate following.
Conservatives love the Constitution except when they want to completely suspend it BECAUSE TERRORISM!!!!!

http://reason.com/archives/2011/12/06/conservatives-drop-their-love-for-the-co

Conservatives Drop Their Love for the Constitution
Terrorists, conservatives say, hate us for our freedom, so they must be stopped—even if that means sacrificing our freedom in the process.

A. Barton Hinkle | December 6, 2011

Santayana defined fanaticism as redoubling your effort while losing sight of your goal. America’s recent discussions about the war on terror would give him few grounds to change his view.

Several GOP presidential candidates have said they would support bringing back waterboarding, a practice the U.S. prosecuted as a war crime after WWII. Apparently it’s only torture when the other side does it.

Last week the Senate was consumed with debate over a defense bill. Among its provisions: an amendment by New Hampshire Republican Sen. Kelly Ayotte to nullify an executive order banning torture. Another proposal: allowing U.S. citizens captured on U.S. soil to be held indefinitely without charge by the U.S. military. (An amendment to strike that language from the bill failed, despite the commendable support of Virginia Sens. Mark Warner and Jim Webb.) Yet another provision would require civilian authorities to hand over terrorism suspects to the military.

Supporters of the detention provision noted language stipulating that the “requirement” to detain a person in military custody “does not extend to citizens in the United States.” But as critics of the measure noted, there is a difference between what is required and what is allowed. The bill “does not preclude U.S. citizens from being detained indefinitely,” according to Rep. Justin Amash. Sen. Lindsey Graham put it more bluntly: the bill declares “that the homeland is part of the battlefield” and those suspected of terrorism can be held indefinitely without charge, “American citizen or not.”

What’s behind this push to militarize the domestic fight against terror? Not the military. The Pentagon’s top lawyer, Jeh Johnson, recently warned against “overmilitarizing” counterterrorism.“There is risk in permitting and expecting the U.S. military to extend its powerful reach into areas traditionally reserved for civilian law enforcement in this country,” he said in October.

And it’s not like civilian authorities have been overwhelmed. The Heritage Foundation has produced a handy summary of the 40 terrorist plots foiled since 9/11. That’s 40—as in four per year. Some of them posed serious danger. But some of the “plots” are almost laughable, involving losers with delusions of grandeur. Take Iyman Faris, whose plan was to make the Brooklyn Bridge collapse by using a blowtorch. Hamid Hayat lied about attending a terrorist training camp, but he wasn’t plotting anything more specific than generic “jihad.” Raja Lahrasib Khan’s “plot” consisted of trying to ferry $1,000 to radicals in Pakistan.

Then there is Jose Pimentel, recently captured by New York authorities in a case so weak federal authorities refused to participate in it or appear at the press conference announcing Pimentel’s arrest. Reports say the unemployed Pimentel made threats while high on pot, and may have received too much help from an informant when he made a pipe bomb by scratching the sulfur off match heads. We’re going to blue-pencil the Constitution for this?

Conservatives complacent about the response to domestic terrorism ought to keep in mind what the Obama administration has to say about the subject. Two years ago the Department of Homeland Security identified a principal threat as “rightwing extremism,” epitomized by such dangerous elements as returning veterans, abortion opponents, and anyone “rejecting federal authority in favor of state or local authority.” That would include people like James Madison, FYI. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)

Conservatives also ought to short-circuit the circular reasoning about accused terrorists that often dominates discourse on the right. That reasoning goes like this: X says he is not a terrorist and thinks he should be able to prove it in a civilian court. But he should not enjoy that luxury, because terrorists do not deserve civilian trials—and X is a terrorist.

Conservatives also ought to renew their skepticism about government’s ability to get things right – something they seem to doubt in every area except national security. Remember the jokes about health care being run with the efficiency of the Post Office and the compassion of the IRS? Now in particular is not a good time to adopt unshakable faith in the military’s infallibility – not after U.S. forces created a diplomatic disaster by calling in a NATO airstrike against friendly Pakistani forces.

Terrorists, conservatives say, hate us for our freedom, so they must be stopped—even if that means sacrificing our freedom in the process. Somewhere up in Heaven, Santayana is sighing.