96% of Congressmen Agree: Bad Legislation Is Easier To Craft In Secret

from the what-the-public-doesn't-know-will-probably-hurt-them dept

We recently discussed the National Defense Authorization Act currently working its way through the House and Senate. Both have passed their respective bills but some debate continues over a controversial provision which aims to extend indefinite military detention (without charge or trial) to cover US citizens, rather than just foreign terrorist suspects.The whole “indefinite military detention” aspect of the bill is heinous enough even if it just ends up being used against foreign suspects. But the decision to declare US territory as a “war zone” in order to mobilize the military against US citizens is particularly worrisome. Due to the fact that this provision is highly controversial and yet another in a long line of post-PATRIOT Act attacks on the Bill of Rights, Congress has decided to move the discussion behind closed doors, presumably to avoid any scrutiny from the very public it wishes to foist this legislation upon. The vote wasn’t even close:

With the House having voted 406-17 to “close” portions of the meetings and avoid public scrutiny, members from both chambers and both parties are meeting in a secretive conference committee to work on reconciling the differences between the House and Senate versions of the bill. On the military detention provision, their main task is going to be to find a solution that can pass both chambers (again) and not draw a veto from President Obama.

Here is the very brief list of representatives who still believe that government still has something to do with being “by the people, for the people”:

Justin Amash (MI)
Earl Blumenauer (OR)
Yvette Clarke (NY)
John Conyers (MI)
Peter DeFazio (OR)
Keith Ellison (MN)
Sam Farr (CA)
Raul Grijaiva (AZ)
Michael Honda (CA)
Dennis Kucinich (OH)
Barbara Lee (CA)
John Lewis (GA)
James McDermott (WA)
John Oliver (MA)
Ron Paul (TX)
Fortney Stark (CA)
Lynn Woolsey (CA)

As depressing as it is that only 17 representatives out of the 423 voting would stand up for government openness, it’s even more depressing that the threat of a veto doesn’t carry much weight. The administration is not altogether opposed to this provision, as is evidenced by this Statement of Administrative Policy:

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

Basically, the administration is expressing its “concern” and advising Congress to pass clarifying legislation in the future. Of course, the legislation the House wanted to pass will already be on the books and judging by the swift passage of both the House and Senate versions, combined with this overwhelming vote for secrecy, there’s no reason to believe Congress will ever feel the urge to dial back its overreach.

In fact, the only thing the administration strongly opposes enough to deploy a veto is the provision that would mandate this power be used against all terrorist suspects besides US citizens.

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.

The adminstration wants to retain its power to detain suspected terrorists outside the context of war and the Geneva Convention protections, but (at least according to this statement) it’s much less concerned about mobilizing the military against US citizens. So the controversial Section 1031 can likely remain intact, unlike the Bill of Rights. It would be the Section 1032 mandate that would need to be altered to fit the administration’s desires, namely broad power over suspected foreign terrorists.

The long and the short of it is that the government wants to retain its worldwide overreach and is more than willing to extend this grasp to US citizens, provided detaining the home crowd indefinitely doesn’t interfere with detaining the visiting team indefinitely. All of this is being done under the pretense of keeping the US safe. And nothing’s safer for citizens than being in indefinite “protective” custody, apparently.

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Comments on “96% of Congressmen Agree: Bad Legislation Is Easier To Craft In Secret”

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Jay (profile) says:

Chilling effects

The military was created to attack the enemies of the state.
The police were created to protect and serve the people.
What we are seeing here is the mixture of the two.

You now have the military acting as the police. When that happens the military will tend to think that the enemy is the people it’s supposed to protect.

I can’t think of any way that this passes Constitutional muster. If it actually passes as a law, expect a lot of resistance to this law.

Eric (profile) says:

Re: Chilling effects

While I can see people having issues with this, I don’t see any resistance taking any form besides speech and complaining. As far as people opposing it in any other way, I doubt anyone will because they likely won’t see the majority on their side and are generally afraid to be the first to move. I figure it’s like the people who say that the government can take their guns ‘from their cold, dead hands’. Most people will peacefully surrender their weapons, especially considering the police has the advantage of training, numbers, and equipment in which to apply the necessary force to scare those people.

Either way, people in America expect the government to protect them, even if they give everything up.

Anonymous Coward says:

Re: Re: Chilling effects

I can’t speak for everywhere, but here in TX I know of several folks with truly awe inspiring gun safes and the know how to utilize it fully.

I would most definitely NOT want to be the one tasked with trying to pry those away.

All I know is which side I’m picking and it ain’t the dude with a shiny badge and a donut gut…

Gwiz (profile) says:

Re: Re: Re: Freedom

Can I supersize my civil rights please?

I’m sorry. That item is currently out of stock and won’t be offered anymore.

We do have our new and improved civil rights package. It’s a larger box with really eye-catching graphics on it and cool catch phrases on it like: “For the children!”.

Unfortunately, there is 98.2% less content in our new offering, but, we are currently offering it a all-time low price of lifetime incarceration.

Anonymous Coward says:

I think the problem is that congress faces a sort of “death by 1000 cuts” if they keep everything open all the time. Essentially, any 0.01% of the population can yell and scream, and if they catch the media’s attention, they can derail the legislative process. With thousands of groups and individuals on each side of almost every issue willing to scream, yell, write blogs, smear a law’s authors (good move Mike!), and generally raise a fuss, it is almost impossible for them to get any more done. It becomes a special interest buffet, as every group who feels slighted in any way can hijack the agenda and slow the process to a stop.

You elect these people for a reason. Stand back and let them do their jobs, quit back seat driving. If you don’t like the results, toss the bums out at the next election.

Killercool (profile) says:

Re: Re:

One problem. We don’t elect them to do what they want however many years their term lasts. They’re supposed to keep listening to their constituents the whole time they hold their office. So, no. It is a terrible idea to just give our opinions of what they are doing after it is done.

We are not consumers of a product they are manufacturing, to boycott their goods.

We can’t just ignore laws they pass that detrimentally effect us.

We need to prevent those laws from being enacted in the first place, to the best of our abilities.

Anonymous Coward says:

Re: Re:

It is disturbing to think that you trust politicians implicitly. They were elected, true, but they were chosen from a group of people who were willing to to do the job not based on who is most capable. Furthermore the “job” they are there to do is represent the interests of the citizens who elected them. They SHOULD be listening to the back seat drivers!

Anonymous Coward says:

Re: Re: Re:

No, I am referencing you posting specifically about the authors of SOPA, singling them out for personal attacks. It’s an old political trick, don’t debate the subject, debate the person. You can almost always find something wrong with the person to discredit them.

Thanks for playing bullshit political games, you know, the ones you get pissed off about when the other side does it.

Anonymous Coward says:

Re: Re: Re: Re:

Why shouldn’t we discredit them? SOPA is an attempt by copyright trolls to destroy the Internet using the power of the Government. Those who try to destroy you using the power of the state are worthy of opposing using all lawful means, are they not?

Perhaps you disagree, but because they’re public figures, they’re legitimate targets for lawful speech attacking them.

We intend for there to be consequences for these lawmakers come the next election, anyway, so we’re using both of your tracks.

After all, the Tea Party might be pissed enough at Lamar Smith for writing a law allowing the evil Obamolech to socialistically censor the Internet that it might field a very well funded challenger to him in the Republican primary.

Grae (profile) says:

Re: Re:

If someone doesn’t feel like they’re being represented, they have a right speak up and complain about it, period. If that slows the process of passing legislation, that’s a good thing and means the system is working as intended. The relative permanency and wide reaching effects of any given piece of legislation means that anything that does pass should be carefully crafted, analyzed, and all possible effects considered. The idea that congress should be unimpeded from just putting into law any steamer that comes out of their ass is a horrifying one.

If you disagree, I suggest you take up residence in China or Iran and write back (assuming you’re even allowed) telling us all you like living without free speech.

Anonymous Coward says:

Re: Re:

What, so congress can ignore the public’s demands but are bothered by it, but special interests cannot be ignored and take priority?

Toss them out in the next election? Has that ever worked before? You don’t get rid of someone just because you don’t like them: you replace them with someone more competent. But the uneducated masses have their heads stuck so far in the sand that they would probably do more good for the world by not existing.

Stop breathing our precious oxygen and forcing your stupidity onto the rest of us! I’d rather not have a drone strike on my head just because I express views contradictory to the idiot US government’s.

Anonymous Coward says:

Re: Re:

“Essentially, any 0.01% of the population can yell and scream, and if they catch the media’s attention, they can derail the legislative process.”

If it’s only .001 percent of the population then the politicians shouldn’t be so worried because it would hardly affect their votes any. and why should any .001 percent of the population have no representation whatsoever? They should be represented just as much as the rest of the population should be.

“smear a law’s authors”

Just about every politician will get smeared no matter what position he or she takes. Being smeared and dealing with people who ‘derail the process’ is part of the job of being a politician. No one forced a politician to be a politician. He could have found another job instead. “But those other jobs also have things that people don’t like”. Work sucks, I know. Almost every job has something undesirable that comes with it. So? Everyone else has to work and put up with workplace problems too. What makes politicians so special?

Anonymous Coward says:

Re: Re:

Considering that fewer than 0.0001% are likely lobbying, drafting, and passing these laws, it seems like 0.01% of the populace against the law is still FAR more people than are for it.

Get your head out of your ass already! People who don’t speak out aren’t “for” anything, they’re sheep, they don’t have an opinion.

TtfnJohn (profile) says:

Re: Re:

The point of a Congress or a Parliament is that they hold their sessions in PUBLIC. Same as a court is supposed to. You know..something about for justice to be done it must be SEEN to be done.

You’d rather, it seems, prefer an autocracy.

One nice thing about a constitutional monarchy, like the UK or Canada is this lovely provision in Magna Charta that says the King cannot have an army. No grey areas there. None at all.

Seems that not only does this bill seek to ignore/overturn the US Bill of Rights it also seeks to overturn Magna Charta by placing the military back in the hands of the executive rather than the legislature.

There is something odd, sad and alarming that what appears to be happening, bit by bit, in the United States is the gradual overturning of what are widely considered the two founding documents of the democratic process in the English speaking world whether congressional or parliamentary today and the source documents of most of our freedoms and liberties.

We’ll really be in trouble when someone decides to craft a bill, in secret of course, that cedes the legislature’s right to set and control the budget to the executive.

Of course, then they can all go home, land jobs in Hollywood at obscene salaries and congratulate themselves on a job well done.

To borrow a phrase and apologize up front for any offense to copyright — “we have met the enemy and he is us”.

nasch (profile) says:

Re: Re: Re:

Seems that not only does this bill seek to ignore/overturn the US Bill of Rights it also seeks to overturn Magna Charta by placing the military back in the hands of the executive rather than the legislature.

The Magna Carta doesn’t apply in the US. The US military is and always has been under the control of the executive. The President is also the Commander in Chief of the US armed forces.

Chuck Norris' Enemy (deceased) (profile) says:

Re: Re: Re:

What is some of that crazy? I hear a lot of accusations that there is “crazy batshit” but never what the crazy is. Like dismissing the candidate without substantial debate. Gingrich preaches limited government and lower taxes but turns around and lobbies the government to bail-out industries with taxpayer money. Now that sounds “batshit crazy” to me.

Kevin H (profile) says:

Re: Re: Re:

Lets look at our GOP hopefuls shall we.

Perry = bat shit crazy / bigoted / religious zealot.

Romney = Not quite as crazy, but has changed positions more time than a porn star.

Bachman = Bay Shit crazy / doesn’t have the experience / would close a non existent embassy in Iran.

Santorum = Google his name says it all.

Paul: Yes, a few years ago he was seen as a psycho outsider with hair brained ideas that would never float. Compared to the Tea Party he is one of the most sane people out there. Compared to the rest of the GOP field hes is the least crazy.

Anonymous Coward says:

Not so long ago the law was more accepting of idiosyncrasies inside society.

In re Marriage of Gustin (Mo. App. 1993) (holding that wife’s chopping through door of marital residence with a hatchet was not “marital misconduct” sufficient to affect distribution of property).

Source: http://kevinunderhill.typepad.com/lowering_the_bar/case-law-hall-of-fame.html

Ninja (profile) says:


Well, they might as well as trash the Constitution and write a new one out of their arses and make it stand.

The US Government has been systematically ignoring and violating the 1st Amendment (and others along the way) since the war on drugs (who was the President back then?), my opinion is that the Patriot Act was the first that really opened the Pandora’s Box. Along with the failed war on drugs and terror came unwarranted raids and seizures, torture, death of due process, guilty upon accusation.

Is it too late to save what’s left of one of the things that used to make the US one of the best places to be born in the world???

A Monkey with Atitude (profile) says:

I wonder if this is not a reaction to all issues the last 2 administrations have done. G.W. Bush and Obama have been cranking up the powers/controls/regulation on all aspects of the citizens (and non-citizens) for at least 12 years (or longer depending on how you wish to look at it). Their (and Congress’s whose approval rate sit at ~13% combined) actions have made people dissatisfied with all of them.

Under Bush people thought (and saw in the election) that the Democrats where the safe haven from the Over-reaching, strong-arm, plutocrats in the Republican party (patriot-act anyone?). Then the middle (which holds no allegiance to 1 party or the other) ran to the other side.

Now we have Obama and his actions (some by his administration, some by Congress, and some by things out of control, NOBEL) have people saying “Oh crap, they are all the same! We now have Over-reaching, Strong-arm, Socialist” thus the Tea-Party’s (love or hate them) start barn storming and raising a voice. They win the House back, and went quiet(and gridlock Congress, or so was the hope). Now OWS steps out on the stage (love or hate them) and people see the same things happening, the Rich buy influence (even most of the Candidates that said they would be different) and with the stroke of a pen, individual liberties disappear…No voice from the people, Just Special Interest, Big Biz, Big Media, and Entertainment

So of course this kind of Legislation comes about, to make it easier to control these mass’s that think “they know better than the elected” and pushing the mass more and more to the point the Congress/President (I hope) is trying to avoid, an actual revolution (either at the ballot box or armed)… both mean they lose their comfy job and worse their power.

People do not believe in either party (just different sides of the same Poop Lollypop) and they are starting to not believe in Congress or the President, or the police…. and it scares them… So break out the military its going to be a long crystal night…

Anonymous Coward says:

Re: Re:

Gave me a thought. Maybe they’re just passing these laws in anticipation of an expected revolution. It must have been scary for special interests to watch what was happening to all those Arab states.
Now all the government has to do is label as a terrorist anyone who dissents/protests/voices an opinion, and they can silence them without so much as a trial (because really, they didn’t do anything wrong; in fact, they’re right).

Prepare for the greatest military state of all history.

Pjerky (profile) says:

Dear Lord, what do they think they are doing?

Are these idiots in Congress TRYING to start another civil war in this country? There is a reason why most people in this country believe Congress should not get re-elected. (ref: http://www.care2.com/causes/vast-majority-of-americans-believe-congress-should-not-get-re-elected.html)

I will tell you this right now, I do not support the actions of Congress and if we have to march right up there and drag them out of office kicking and screaming and put them on trial for their crimes against this country then I am all for it. There is no excuse for any of this BS that they have been putting on us for the last 10 to 20 years.

They keep getting worse and worse. They, along with the executive and judicial branches, keep violating our Constitutional rights. They are violating humanitarian protocol that our country helped put together almost half a century ago. They are breaking with the Geneva Conventions.

Who the hell do they think they are? This is insane. I am all for stopping terrorists, but these actions don’t stop terrorists. These actions turn our other police and military forces into government sponsored terrorists.

I am voting all incumbents out of office in this next round of elections. We need representatives that actually believe in the rights of citizens.

We also need a bill that requires ALL government legislation, ALL treaties, and ALL executive agreements, from beginning (prep work and negotiations) to end be fully open to the public and documented (video and audio of everything) on the internet for the world to see.

As far as I am concerned any bills that are not created fully in the open should be automatically become null and void. They are worthless and illegal and harmful to everyone. They are a threat to the stability, security, and wealth of this nation.

Greevar (profile) says:

Re: Dear Lord, what do they think they are doing?

It’s not Congress that we need to drag out and beat, but their paymasters. The richest of the rich use their corporate money to buy loyalty and obedience from our government. We should drag them out into the street, take their money away from them and buy back our government while making it impossible for anyone to ever buy our representatives ever again.

If we go to war, we should target the rich, not the government. They are the head of the beast that needs to be slain. Let’s cut it off at the head.

Aoeu (profile) says:

closed isn't always bad

Good legislation is also easier to craft in secret. Do you want some good and some bad, or just lots of mediocre? That’s a serious question.

I think it’s a mistake to make it sound like discussing behind closed doors is always bad and openness is always good. I thought this to be especially true during the deficit negotiations, when people complained that the super committee was meeting behind closed doors. Do you expect any Republican to agree to raising taxes in an open meeting? Or a Democrat to suggest a replacement for unfunded entitlement programs?

Of course, the other view is that government can’t do anything right, and that it needs to be restrained in every way possible. While they may pass a few good laws, most of them will be terrible, in which case openness would be good, as it creates gridlock.

Now I don’t think that this law is necessarily good (because we probably elect more terrible politicians than great ones that are constrained by their party/constituents), but I don’t think everyone here seems to be aware of the implicit tradeoff they’re making when demanding openness.

crade (profile) says:

Re: closed isn't always bad

Secrecry in political dealings isn’t always bad, if you are in a communist dictatorship or any other form of government that isn’t dependent on the public being informed in order to operate properly, then hiding what you are doing from the public should work ok.

Deception and secrecy is always bad in a democracy though, (in my books at least), since a democracy is dependent on the public having access to information about the operation of the country. If the information that the public is allows access to is controlled, the voting is controlled and you don’t have a proper democracy.

nasch (profile) says:

Re: closed isn't always bad

Good legislation is also easier to craft in secret. Do you want some good and some bad, or just lots of mediocre? That’s a serious question.

I’d rather have mediocre law. Especially when the bad laws are this horrifyingly bad, and the good ones aren’t terribly impressive.

I thought this to be especially true during the deficit negotiations, when people complained that the super committee was meeting behind closed doors. Do you expect any Republican to agree to raising taxes in an open meeting? Or a Democrat to suggest a replacement for unfunded entitlement programs?

Since they completely failed to accomplish anything meeting behind closed doors, I’m not sure what your point is.

Now I don’t think that this law is necessarily good (because we probably elect more terrible politicians than great ones that are constrained by their party/constituents), but I don’t think everyone here seems to be aware of the implicit tradeoff they’re making when demanding openness.

First of all, “not necessarily good” is about the understatement of the century. Secondly, do you actually have any evidence for your claim that closed sessions produce better laws? I know it’s hard to measure, but I’m curious if you’re just going with your gut or if you’re backing it up with something.

Anonymous Coward says:

Instead of whining about the Patriot Act, why don’t you Internet Heroes hop on the Ron Paul bandwagon? He is the only candidate on both sides that has any sense of morals and ethics and is the only candidate to publicly declare that he would repeal the Patriot Act. Everyone thinks he is a crackpot but if you listen to what he says, he’s the only one who understands wtf is wrong with Washington DC and not running fir personal gain. You have no right to bitch abiut the erosion of your civil rights if you continually vote for candidates that support the erosion of your civil liberties. Wake up people.

Thomas (profile) says:


know full well that they need the “campaign contributons” (bribes) from the rich to get elected and they don’t usually give a rats tushie about voters until it is election time and they lie and attack each other and promise things that will never happen and they will never actually vote for anyway.

The ghosts of Himmler and Beria would be proud of the U.S. congress, the White House, and the military as well.

The White House and the spooks want to be able to make anyone they dislike disappear without trace, which is the hallmark of a government that believes in the rule of an iron fist rather than the law. We proudly castigate the governments of China and Iran for violating human rights and then we turn around and do the same thing. The government is run by hypocrites.

hegemon13 says:

Re: Re:

Yep. Sadly, liberty didn’t even last 100 years before a mythical, so-called hero suspended Habeas Corpus, imprisoned journalists and closed newspapers who didn’t give him unconditional support, deported a congresman for speaking against him, and put out an arrest warrant for the Chief Justice for daring to write an opinion that suspension of Habeas Corpus was illegal.

Sadly, we built Abraham Lincoln a monument and enshrined him in our history books as our greatest president and a great defender of freedom. And we wonder why we keep making the same mistakes.

Violated (profile) says:


So why exactly is the United States a war zone and why do they want to detain indefinitely the usually nice and friendly US citizens?

I can only feel that if such legislation says such strange things only to be massively supported by Congress then they already have an exact detainee in mind that they are writing this very bill for.

It almost sounds like they have Osama Bin Laden hidden away there somewhere or someone else of such high standing.

nasch (profile) says:

Re: Puzzled

So they claim and history is wrote by the winners. Well you can name anyone you like that makes Congress turn the US in a war zone just to detain.

I think it’s more likely it’s just a general power grab and not aimed at anyone in particular. If it was just one person they wanted, I think they would just disappear him and not worry about the law.

Brandt Hardin (user link) says:

Living in a Society of Fear

The NDAA if passed will only go to further stifle our Constitutional Rights without the approval of the Americans, just as the Patriot Act was adopted WITHOUT public approval or vote just weeks after the events of 9/11. A mere 3 criminal charges of terrorism a year are attributed to this act, which is mainly used for no-knock raids leading to drug-related arrests without proper cause for search and seizure. The laws are simply a means to spy on our own citizens and to detain and torture dissidents without trial or a right to council. You can read much more about living in this Orwellian society of fear and see my visual response to these measures on my artist?s blog at http://dregstudiosart.blogspot.com/2011/09/living-in-society-of-fear-ten-years.html

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