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Battlefield America: Is Gitmo in Your Future?

A retired top CIA analyst ponders if he could be arrested and held under the Senate's new military detention policy.

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Early Obfuscation

From my erstwhile colleagues at CIA, there has been more mumbo-jumbo aimed at disguising what is really afoot. According to press reports, the CIA general counsel has already said, disingenuously:  “American citizens are not immune from being treated like an enemy if they take up arms against the United States.”

But one does not need to “take up arms” in order to be labeled a “combatant,” as the government is defining such terms. Awlaki didn’t take up arms; he was said to have provided “material support to terrorism” by his alleged – but unproven – encouragement of terrorist attacks on the United States. (Under the new NDAA, a similar fate could befall someone who advocates resistance to “coalition partners,” like NATO countries or some corrupt governments that are U.S. allies, such as the Karzai regime in Afghanistan or the terror-linked government of Pakistan).

In the broad strokes of defining American “partners” and al-Qaeda/Taliban “associated forces,” will Israel fall into the first group and Iran, Hamas and Hezbollah get lumped into the second?

Could material support be nothing more than providing financial support for the U.S. Boat to Gaza, which challenged the  Israeli embargo of Hamas-ruled Gaza? If creative lawyers for this or some future administration get busy, would the new NDAA provide authority for the military to detain such a U.S. citizen under the Law of War and transfer him or her to Guantanamo or elsewhere?

Conflicting legal interpretations of the bill are now more about whether military detentions would be mandatory or would the president still retain some discretion.

In sum, the wording appears to create a parallel military justice system that, theoretically, we are all subject to. All that would be needed is an allegation by someone that we assisted someone who in some way assisted someone else in some way. An actual terrorist act would not be needed – and neither would a trial by one’s peers as guaranteed by the Constitution to determine actual “guilt.”

Should you be tempted to dismiss this as “liberal fear-mongering,” take a look at this item from FoxNews.com with its gleeful headline: “Democrat-Controlled Senate Passes Constitution-Shredding Defense Authorization Bill”:

“The bill would require military custody of a suspect deemed to be a member of Al Qaeda or its affiliates and involved in plotting or committing attacks on the United States. … The legislation also would give the government the authority to have the military hold an individual suspected of terrorism indefinitely, without a trial.

“‘Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law,’ said Christopher Anders, senior legislative counsel for the American Civil Liberties Union.”

A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain, R-Arizona, and Lindsey Graham, R-South Carolina, to claim that the bill’s stringent provisions do apply to U.S. citizens, as well as non-citizens.

In addition, the new wording adds “associated forces” (whatever that means) to the previous AUMF’s list of targets. The language of the AUMF of September 2001 was limited to “those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

Burning the Midnight Oil