McCain and Lieberman's "Enemy Belligerent" Act Could Set U.S. on Path to Military Dictatorship
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On March 4th, Senators John McCain and Joe Lieberman introduced a bill called the "Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010" that, if passed, would set this country on a course to become a military dictatorship.
The bill is only 12 pages long, but that is plenty of room to grant the president the power to order the arrest, interrogation, and imprisonment of anyone -- including a U.S. citizen -- indefinitely, on the sole suspicion that he or she is affiliated with terrorism, and on the president's sole authority as commander in chief.
The Act begins with the following (convoluted) requirement:
Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act.
In other words, if at any point, anywhere in the world, a person is caught who might have done something to suggest that he or she is a terrorist or somehow supporting a terrorist organization against the U.S. or its allies, that person must be imprisoned by the military.
For how long?
As long as U.S. officials want. A subsequent section, titled "Detention Without Trial of Unprivileged Enemy Belligerents," states that suspects "may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners." In a press conference introducing the bill earlier this month, Sen. Joe Lieberman said, "I know that will be -- that may be -- a long time, but that's the nature of this war."
As constitutional expert Glenn Greenwald has pointed out, "It's basically a bill designed to formally authorize what the Bush administration did to American citizen Jose Padilla -- arrest him on U.S. soil and imprison him for years in military custody with no charges." What happened to Padilla, a notorious perversion of justice in a country that claims to be a democratic standard-bearer, would thus go from being an exception to the rule itself.
As "war on terror"-era legislation goes, Greenwald calls the Enemy Belligerent Interrogation, Detention, and Prosecution Act "probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades, far beyond the horrific, habeas-abolishing Military Commissions Act." This is a sobering statement, especially given the intense controversy the MCA generated at the time of its passage, in the heady weeks preceding the 2006 midterm elections. Then-Senator Obama was one of only 34 senators who voted against it, calling it "sloppy," and expressing his wish that "cooler heads … prevail after the silly season of politics is over."
Now, however, as president, Obama has helped pave the way for such radical legislative efforts as the one introduced by McCain and Lieberman, by embracing -- and re-branding -- the military commissions he once opposed.
"Belligerents" are the new "Combatants"
Three years after Obama eloquently opposed the Military Commissions Act, the now-president signed a Military Commissions Act of his own, as part of the 2010 Defense Authorization Bill. The law, which sought to overhaul the discredited Bush-era military commissions for "alien enemy combatants," introduced what is apparently turning out to be an important new term to the counterterror lexicon: Unprivileged Enemy Belligerent, defined as "an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners."
Months before, in March of 2009, the Obama administration announced that it was phasing out the term "alien enemy combatant," even as it held on to the authority to hold terror suspects indefinitely. "Unprivileged Enemy Belligerent," then, was its replacement.
As Human Rights Watch attorney Joanne Mariner wrote last fall, "this is a cosmetic change, not a real improvement, which mirrors the administration's decision to drop the enemy combatant formula in habeas litigation at Guantanamo Bay."
What overshadows all of these differences is, however, a key similarity with the Bush-era definition. Just as, in the Guantanamo habeas litigation, the Obama administration has adopted the Bush-era position of claiming that persons who provide support to hostilities can be treated just like persons who engaged in hostilities, the new law's "unprivileged enemy belligerent" definition takes the same tack."
In other words, it is as expansive a definition of "terrorism" as possible.
In Obama's defense bill, the word "alien" preceded the term "unprivileged belligerents," in defining who can be held before a military commission. For McCain and Lieberman's purposes, omitting the word "alien" apparently means the label can apply to U.S. citizens, while, politically, the word "unpriviliged" provides a useful connotation: terror suspects will not be coddled like common criminals!
This now-familiar line is the one Senators McCain and Lieberman have taken in pushing their legislation. "These are not common criminals. They are war criminals,” Lieberman told reporters at his press conference with McCain. The bill now has eight Republican co-sponsors: Sen. Saxby Chambliss (GA), Sen. James Inhofe (OK), Sen. George LeMieux (FL), Sen. Jeff Sessions (AL), Sen. John Thune (SD), Sen. David Vitter (LA), Sen. Roger Wicker (MS), and the newly-elected Sen. Scott Brown (MA).
In case there was any doubt that terror suspects will have no rights under this law, the Right's cynical attack on Miranda rights has been conveniently inscribed into the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010:
A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona … or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.
But what is perhaps most dangerous is the tremendous amount of power it gives to a U.S. president to determine who is and who is not a terrorist. Under the bill, the president would establish a 'high-value detainee interrogation group," comprised of Executive Branch experts "in matters relating to national security, terrorism, intelligence, interrogation, or law enforcement as the President considers appropriate." This group would be in charge of making a "preliminary determination whether or not the detainee is an unprivileged enemy belligerent … based on the result of its interrogation of the individual and on all intelligence information available to the interrogation group." Its findings would go to the Secretary of Defense and the Attorney General, who would "jointly submit to the President and to the appropriate committees of Congress a final determination whether or not the detainee is an unprivileged enemy belligerent."
"In the event of a disagreement between the Secretary of Defense and the Attorney General, the President shall make the final determination."
Also, all of this has to happen no more than 48 hours after the detainee is brought into military custody.
Where's the Controversy?
The Enemy Belligerent Interrogation, Detention, and Prosecution Act has yet to go anywhere -- it has been referred to the Senate Judiciary Committee -- which might account for the lack of discussion about it. But, especially coming from two politicians as influential as McCain and Lieberman -- "Serious Centrists" as Greenwald calls them, regularly "feted on Sunday shows" -- such a radical stab at authoritarian rule must be swiftly and loudly condemned.
"Why is the national security community treating the 'Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010,' introduced by Sens. John McCain and Joseph Lieberman ... as a standard proposal, as a simple response to the administration's choices in the aftermath of the Christmas Day bombing attempt?" asked The Atlantic'sMarc Ambinder this month, "A close reading of the bill suggests it would allow the U.S. military to detain U.S. citizens without trial indefinitely in the U.S. based on suspected activity."
This is a defining characteristic of a military dictatorship. Where's the outrage? And will it come before it's too late?