The Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010, a legislative monstrosity produced by John McCain and Joe Lieberman, goes further than any Bush-era legislation in abrogating the core principle of Anglo-American justice: that a suspect is innocent until proven guilty. While the bill is deplorable in every detail -- it denies terrorist suspects their Miranda rights and codifies indefinite detention without trial -- one particular provision effectively ends the presumption of innocence for all of us. That provision codifies the President's right to define any criteria he chooses to deliver any individual into the legal Twilight Zone defined by the bill.
The bill authorizes the President to establish an "interagency team" to make a "preliminary determination of the status" of an individual "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." That team will determine whether the suspect shall be accorded a preliminary designation as a "high value detainee" (a.k.a. "unprivileged enemy belligerent" -- the bill makes no coherent distinction between these terms). A final status determination is to be made by the Attorney General and Secretary of Defense; the President can only weigh in if these two disagree. Incredibly, the entire procedure from capture to final status determination is to be completed within 48 hours.
The provision that removes all discretionary limits to this secret determination of status is in the Criteria for Designation of Individuals as High-Value Detainees. That section creates an initial impression that such "determinations" are subject to the rule of law by laying out specific criteria, beginning with "(A) The potential threat the individual poses for an attack on civilians..." (B) the potential threat the individual poses to United States military personnel..." etc. But the final criterion (E) zooms to infinity: it is simply "Such other matters as the President considers appropriate. "
Thus any individual, whether a foreign national or a U.S. citizen, can be designated an "unprivileged enemy belligerent," forever denied access to civilian courts and subjected to indefinite detention "without criminal charge and without trial for the duration of hostilities against the United States or its coalition partners" -- that is, forever -- on the basis of such other matters as the President considers appropriate.
Paradoxically, while the President can set any criteria he chooses to determine the detainee's status, he can only overrule the final status determination if the Attorney General and Secretary of Defense disagree. Also paradoxically, once a captive "is captured" or "comes into custody" and "is suspected" of being or "may be" an "unprivileged enemy belligerent" -- note the passive voice and other grammatical constructions obscuring agency -- the President does not have the option of having the suspect tried in civilian court. If the AG and the SecDef are in agreement they are apparently accountable to no one.
Once the captive "is suspected" by a nameless agent, there is a kind of infinite regress to the adjudication: interrogation yields to "preliminary status determination" which moves on without any further legal proceeding to a final determination by the AG and SecDef, made according to any criteria the President deems appropriate. The captive then can -- indeed, arguably, must -- be detained "for the duration of hostilities" -- that is, forever. There is no mention even of trial by military commission. In fact, the process outlined effectively forecloses the possibility of a military trial.
It is unimaginable that Obama would sign such a law. At present this is an act of pure legislative aggression, an attempt to score political points, put forward by two politicians who have not a scrap of integrity left between them. But it's also a shot across the bow for all of us. A President Palin, or Giuliani, or "Double Guantanamo" Romney, or doubtless a pandering Pawlenty, would sign it in a heartbeat. Give one of that crew a Supreme Court appointment or two, and the High Court would concur.
Cheney's "Dark Side" waits in the wings to subject us all to unbridled executive power.
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