MISSION CREEP: On December 1 the Senate voted 93 to 7 to pass the 2012 National Defense Authorization Act, which has been widely criticized by civil libertarians for allowing the government the authority to imprison American citizens accused of terrorism indefinitely, without charge. For two weeks leading up to the vote, however, a related debate pitted Democrats Carl Levin and Dianne Feinstein against each other. At issue? Whether the 2004 Supreme Court decision in Hamdi v. Rumsfeld had already given the government that authority. As Levin repeatedly noted, the plurality decision in Hamdi asserted that “there is no bar to this nation’s holding one of its own citizens as an enemy combatant.”
Ultimately, the Senate decided not to decide, instead inserting language stating, “Nothing in [the detention section of the bill] shall be construed to affect existing law or authorities, relating to the detention of United States citizens” or anyone else.
The debate may have surprised Americans who thought the Bill of Rights guaranteed due process. But while no citizen has been held in military custody without charge since Jose Padilla, both the Bush and Obama administrations have used Hamdi to justify using “war powers” against citizens, including warrantless wiretapping, interrupted communications and the targeted killing of the American-born Yemeni cleric Anwar al-Awlaki.
Now Levin claims Americans need not worry about the government abusing indefinite detention, because habeas corpus guarantees court review of the government’s claims. But such assurances ring hollow. A recent DC Circuit Court decision, Latif v. Obama, significantly watered down such review, instructing judges to assume that documents the government submits—even intelligence reports with clear errors, like the central report in that case—are accurate.
The Justice Department has proven far more successful than military commissions at prosecuting accused terrorists. Claims in cases like Latif—and legislative efforts to codify those claims—move us much closer to a dangerous scenario, where the government could use secret intelligence, rather than legal proof, to imprison American citizens. MARCY WHEELER
CHILE: JUDGMENT DAY ON THE U.S.: In 1982 the poignant Oscar-winning Costa Gavras movie Missing depicted the true story of two US citizens, Charles Horman and Frank Teruggi, seized and executed by the Chilean military after the September 1973 coup. The film focused on the disappearance of Horman, and the desperate attempts by his father and wife to find him in the face of cold indifference, and possible participation, of pro-coup US officials in Chile.
Now, thirty-eight years after they were killed, a Chilean judge, Jorge Zepeda, has issued an indictment in the case that not only vindicates the premise of the film but appears to go well beyond it in asserting US complicity. On November 29 Zepeda indicted a Chilean intelligence officer, as well as the former head of the US Military Group, Navy Capt. Ray Davis, as accomplices to the murders. In a petition to the Chilean Supreme Court to authorize an extradition request, Zepeda stated that Davis was responsible for a “secret intelligence-gathering investigation of US citizens” in Chile. Information casting them as “extremists” was allegedly turned over to the intelligence branch of the Chilean High Command after the coup. Zepeda suggests that intelligence on Teruggi, including his address in Santiago, led to his detention on September 20, 1973.