Throw Away the Key

The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010” (S. 3081) was recently referred to the Senate Committee on the Judiciary. On its surface, the bill gives some structure and guidance for the treatment of suspected terrorists, presumably to eliminate the sort of ad-hoc, back-and-forth approach that we’ve seen in the news lately with regard to where suspects will be tried and by whom. The bill’s sponsors are John McCain (R-Arizona), Joe Lieberman (I-Connecticut), James Inhofe (R-Oklahoma), Scott Brown (R-Massachusetts), Roger Wicker (R-Mississippi), Saxby Chambliss (R-Georgia), George Lemieux (R-Florida), Jeff Sessions (R-Alabama), and David Vitter (R-Louisiana).

Whatever one might think of the merits of S3081, it is in no way, shape, or form a small-government approach. If passed, the bill would grant the Executive branch the power to throw anyone it suspects of aiding or participating in terrorist organizations into a military prison indefinitely, without being convicted of a crime or being afforded legal representation. As one might expect from a bill sponsored almost exclusively by Republicans, it’s a “lock ‘em up and throw away the key” approach that would do little to protect Americans from terrorism. It would, however, greatly enhance government power and pose a serious threat to our civil liberties.

Here are some key passages from the bill:

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.

• As the neocons have been telling us ever since 9/11, the entire world is their battlefield. This clause would require anyone suspected of supporting or engaging in hostilities against the US to be placed in a military prison.

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 (384 U.S. 436 (1966)) 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.

• This clause, presumably, is meant to assuage the talk radio crowd that foams at the mouth whenever suspected terrorists are Mirandized, a reaction driven by their belief that foreigners shouldn’t be “granted” the Constitutional rights American citizens enjoy. This position, however, reveals a troubling big-government interpretation from the allegedly small-government crowd. Rights are not granted by the US Constitution. The Constitution recognizes and ostensibly protects the rights that all people have by virtue of their humanity. Rights are not bestowed upon us by a benevolent government as a reward for good behavior. The Constitution spells out how the federal government is supposed to behave, and that behavior is not dependent on the nationality of the people involved.

The high-value detainee interrogation group responsible for interrogating a high-value detainee under subsection (b) shall make a preliminary determination whether or not the detainee is an unprivileged enemy belligerent. The interrogation group shall make such determination based on the result of its interrogation of the individual and on all intelligence information available to the interrogation group.

CRITERIA FOR DESIGNATION OF INDIVIDUALS AS HIGH-VALUE DETAINEES- The regulations required by this subsection shall include criteria for designating an individual as a high-value detainee based on the following:

(A) The potential threat the individual poses for an attack on civilians or civilian facilities within the United States or upon United States citizens or United States civilian facilities abroad at the time of capture or when coming under the custody or control of the United States.

(B) The potential threat the individual poses to United States military personnel or United States military facilities at the time of capture or when coming under the custody or control of the United States.

(C) The potential intelligence value of the individual.

(D) Membership in al Qaeda or in a terrorist group affiliated with al Qaeda.

(E) Such other matters as the President considers appropriate.

• Who makes the determination as to whether a suspect is an “unprivileged” enemy belligerent? Functionally the same people who threw him in a military prison in the first place – and certainly not a jury of his peers. What constitutes reason to believe someone might be a belligerent? Whatever the President says.

No funds appropriated or otherwise made available to the Department of Justice may be used to prosecute in an Article III court in the United States, or in any territory or possession of the United States, any alien who has been determined to be an unprivileged enemy belligerent under section 3(c)(2).

• This would settle the “Do we try him in New York or Gitmo?” question once and for all. The answer is Gitmo.

While a final determination on the status of an alien high-value detainee is pending under section 3(c)(2), the alien shall be treated as an unprivileged enemy belligerent for purposes of subsection (a).

• Guilty until proven innocent.

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

• Citizens and non-citizens alike placed in military prison on nothing but the say-so of a few members of the Executive branch and kept there without trial, without ever being convicted of a crime by a jury, until such time as no one tries to harm the United States or its allies ever again.

The term `hostilities' means any conflict subject to the laws of war, and includes a deliberate attack upon civilians and civilian targets protected by the laws of war.

• The last time Congress declared war was 1941.

UNPRIVILEGED ENEMY BELLIGERENT- The term `unprivileged enemy belligerent' means an individual (other than a privileged belligerent) who--

(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposely and materially supported hostilities against the United States or its coalition partners; or

(C) was a part of al Qaeda at the time of capture.

• Once upon a time these were all things that had to be proven in a court of law before sentencing was carried out. If this bill passes, the government will be able to skip a few steps.

Legend has it that long ago Republicans supported limited government because they understood the danger of concentrating untrammeled power in the hands of a few. Those days have been lost in the mists of time. Today, the Republican party has no fear whatsoever of empowering the government to lock up anyone (citizen and foreigner alike) for life, based on nothing but unproven suspicions or “such other matters as the President deems appropriate.”

So on the one hand, Republicans profess to believe that the government is too inept, bureaucratic, and/or corrupt to run health care, banks, or car companies. On the other hand, they believe that the very same government will perform admirably, competently, swiftly, and justly as long as it’s prosecuting the “war on terror.” Keystone Kops one day, Jack Bauer the next.

But perhaps they’re correct when they tell us that “9/11 changed everything!” This bill certainly supports that view. It would change everything - for the worse. Perhaps the Enemy Belligerent Interrogation, Detention, and Prosecution Act makes sense if one really believes that the terrorists “hate us for our freedom.” If that’s the case, then it’s an easy fix. Just eliminate freedom, and no one will ever attack the United States again. That seems like a mistaken view and a Pyrrhic victory to me, but this bill is at least consistent with that analysis.

But a word of caution for the “conservatives” who support this “throw away the key” approach to dealing with suspected terrorists. The key you throw away may be the key to your own liberty.