Monday, March 08, 2010

"Enemy Belligerent" lawmakers: McCain and Lieberman

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.

Related post: Is trusting Obama like trusting Bush?


  1. I have no real comment, other than to thank you for writing this so that I can read it and be aware. So, thank you.

    Lou From Here

  2. Did they get the idea from Communist China? Sounds identical to how you get packed off to the Gulag. Well done, useless senators.

  3. I think that it is fitting to thank you as Anonymous, so thank you too.

  4. This is one of the scariest things I've ever read.

  5. This sounds like really good news. Finally, we are perhaps going to get serious about terrorists. Way to go Senators. You have our support.

  6. Waiting in the wings indeed....

    I wonder if fascism is a necessary stage in the evolution of a nation from "self-reliant-based" values to "community-based" values.

    At least that is the path that Europe and some Latin American countries like Argentina took in the 20th century. I really don't want to go through that in america though; a fascist american government could do damage that would make what Bush/Cheney did look immaterial.

  7. I will offer my thanks as well. Any info on the procedural status of the bill?

    Hey, at least it's bipartisan!

  8. #8: That seems to be a little too broad of a simplification to me; each of those countries had their own unique political histories that led to those governments. Peron, for instance, had much more in common with the dictators of the early independence era than with the early 20th century European fascists, even if he did make use of their rhetoric. He was also heavily involved throughout much of his political career with the syndicalists and unions, unlike Mussolini, Hitler, and Franco who either turned on the unions, or were never friendly with them in the first place.

  9. good thing we have a system where if the government wants to get all fascist, they have to write it down first, no?