KEITH OLBERMANN: On his second day in office, President Obama signed an executive order shutting down the Bush-era practice of "extraordinary rendition," which involved picking up a suspected terrorists in one country and moving them to a so-called "black site" in another country, where conditions and/or laws concerning torture were sub par.
In our third story — a nearly-overlooked section of the new Defense Authorization Act, which already allows for permanent detention of American citizens, seems to provide the president cover for a revival of this tactic, rendition.
Under the heading "Disposition Under Law of War," which dictates what can be done to the detained, Section Four makes it clear that the president is allowed to "transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity."
Or, in layman's terms, subject them to rendition.
While the president has stopped the Bush Administrations action of "extraordinary rendition," it is possible that Section Four would provide the legal justification for resurrecting a similar program.
Some claim that the Defense Authorization Act does not apply to American citizens at all. They point to an amendment added by Senator Dianne Feinstein, which states that, "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States," seemingly indicating that none of this applies to American citizens or any person living in the U.S.
However, the idea that this will not "affect existing law" gives that amendment almost the opposite meaning. The Obama administration claims that — under its interpretation of current laws — it already has the power the detain anyone who it think supports al-Qieda, the Taliban-associated forces and, among the potential detainees, American citizens are included.
Let's try to straighten out the meaning of this bill with Scott Horton, contributing editor for Harper's Magazine. Thank you for your time tonight, sir.
SCOTT HORTON: Great to be with you.
OLBERMANN: Does that amendment, added by Senator Feinstein, in fact, exclude American citizens from this bill, or does the president's interpretation of the law overrule it?
HORTON: No, it leaves the question open, fairly, I think. And, in fact, Senator Feinstein offered two amendments. The first one, I think, would have resolved this fairly clearly, to the effect that Americans would not be covered unless they were apprehended outside of the country. But that amendment failed, 55 to 45. So, the one that passed is much more ambiguous. I think it makes clear that the law is locked in as it stands, but I think there is a lot of room for argument about how the law stood before this measure was enacted.
OLBERMANN: So, the simple answer to the complex question is probably impossible. What is the simplest, however, answer to the question of what this bill has done to a president's ability to detain American citizens, captured on American property or soil or in the country itself in terms of detention or in terms, now, of rendition?
HORTON: Well, we have a very aggressive attempt to define the homeland as part of the battlefield. That, in fact, figured in the floor arguments for this measure.
And American citizens — clearly not exempt. They clearly can be determined to be with al-Qaida or associated forces. So, it's clear to me — even with the Feinstein amendment, there still would be a clear basis for the president, if he chose to do so, to seize an American citizen and subject him to treatment under this militarized version.
I think there are, sort of, two different ways you can look at this. You can look at an American who wears a foreign uniform of a power at war with us, as happened during World War II. That's a clear-cut case.
But then you've got the case of, let's say, a teenager in Ohio who uploads an al-Qaida video and sends emails arguing or praising al-Qaida's attacks. Well this— such a person could be labeled an al-Qaida sympathizer, as someone working with al-Qaida, could be seized and could be dealt with. But not in the view, I think, of a majority of the Supreme Court justices.
So, I think we have got a lot of room to argue about the second case. But it's not clearly resolved, and there is very good reason for civil libertarians to be troubled by this measure.
OLBERMANN: And about the Supreme Court — the rose-colored view of this suggests that yes, it may be vague but the Feinstein amendment probably covers the chance of throwing that kid in Ohio into the back of a van and locking him up indefinitely and, if it doesn't, don't worry, the Supreme Court will rule it unconstitutional.
But even that scenario would allow the government to keep somebody under wraps for a long period of time until that hypothetical Supreme Court ruling. We are talking about, essentially, three years, four years before there might be a ruling in such a case?
HORTON: Yes, well, the experience since the beginning of the war on terror was three years and up, certainly not less than that. I think it would be some measure of public outroar — uproar if this happened with a school kid from Ohio, but you have standing issues to resolve, many other things.
I think it would be — it would be difficult to get a determination in the Supreme Court quickly. And the Supreme Court is changing. So, you know, I think we have a snapshot from several years ago where the court majority would have been opposed to it. I think that's still the case today. But I think we could see some change in its composition before the question is actually presented.
OLBERMANN: The statement from the attorney general, that the president is going to issue a signing statement for the bill that would help clarify this — any indication what that might be or what should be most clarified?
HORTON: Not clear. I mean, I think there are two major areas where the Obama administration pushed back. One area, fairly effectively, had to do with the president's authority in this area — his authority to direct prosecutions, to choose the system that will be applied and so forth.
And I think the Justice Department probably is going to say, "In signing this, he is not stepping back from the historical view of presidential powers in this area."
But I think the area of greater concern, really, is with civil liberties. And I think there is he is under considerable pressure to step up to the plate and say something about how he will apply this legislation consistent with the Constitution, consistent with the Bill of Rights. And that's where I hope to see Eric Holder to take pen to paper and state something aggressive, but we haven't seen anything like that so far in this administration.
OLBERMANN: Indeed.
Scott Horton, human rights law authority, and of Harper's Magazine, great thanks for the attempt at the clarifications.
HORTON: Great to be with you.
