A Belligerent Silence

by Eric Martin

Any national-secuirty related bill sponsored by John McCain and Joe Lieberman should be assigned a presumption of doubt as a matter of course considering the sponsors and their respective track records.  Well, the Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 doesn't exactly shatter any preconceptions.  As Marc Ambinder reports  (via K-Drum), "it would allow the U.S. military to detain U.S. citizens without trial indefinitely in the U.S. based on suspected activity."

Indefinite detention of U.S. citizens (and non-citizens) without trial based on the accusations of the executive branch, codified in law.

This is so retrograde, so reactionary, that, in essence, what they are calling for is a repeal of the Magna Carta and the centuries of precedent that followed.

The gory, and I do mean gory, details:

The bill asks the President to determine criteria for designating an individual as a "high-value detainee" if he/she: (1) poses a threat of an attack on civilians or civilian facilities within the U.S. or U.S. facilities abroad; (2) poses a threat to U.S. military personnel or U.S. military facilities; (3) potential intelligence value; (4) is a member of al Qaeda or a terrorist group affiliated with al Qaeda or (5) such other matters as the President considers appropriate. The President must submit the regulations and guidance to the appropriate committees of Congress no later than 60 days after enactment.

To the extent possible, the High-Value Detainee Interrogation Team must make a preliminary determination whether the detainee is an unprivileged enemy belligerent within 48 hours of taking detainee into custody.

The High-Value Detainee Interrogation Team must submit its determination to the Secretary of Defense and the Attorney General after consultation with the Director of National Intelligence, the Director of the Federal Bureau of Investigation, and the Director of the Central Intelligence Agency.  The Secretary of Defense and the Attorney General make a final determination and report the determination to the President and the appropriate committees of Congress.  In the case of any disagreement between the Secretary of Defense and the Attorney General, the President will make the determination.  

As one might expect, Glenn Greenwald has more:

It's 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. It literally empowers the President to imprison anyone he wants in his sole discretion by simply decreeing them a Terrorist suspect — including American citizens arrested on U.S. soil. The bill requires that all such individuals be placed in military custody, and explicitly says that they "may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners," which everyone expects to last decades, at least. 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.

This bill has produced barely a ripple of controversy, its two main sponsors will continue to be treated as Serious Centrists and feted on Sunday shows, and it's hard to imagine any real resistance to its passage.

If the bill passes both houses, and Obama vetos it, no doubt the GOP will lambaste him using that veto as proof that he is "soft" on terror.  Hell, that will be the cudgel wielded in the Congressional fight regardless.

This bill, not any minor tweaking of private health industry regulation, would actually do much to upend the American system of governance.  And my money is on one of the major Party's fighting like hell to enshrine it in law.

Comments

[John Thullen]

Congress should pass the Bill, and President Obama should sign it to great fanfare on the White House lawn with Reprehensible Steve King standing next to him grinning like a madman.

As soon as the President signs it, he should hand the pen to King and simultaneously shackle handcuffs to King's wrists.

Drag him away. Obama should then give McCain and Lieberman a look that says "Would you two like a piece of this?"

Then arrest and disappear the FOX News Crew in attendance.

Let the Reign of Terror begin.

My philosophy with today's demagogues in office and their enablers is to give them everything their fever dreams desire.

Death Panels? One in every Republican precinct.

Detention Camps run by the Census Bureau? Ship Michelle Bachmann off sans portable hair dryer (waterboarding should permanently muss up hair as an object lesson) and lip gloss.

[Eric Martin]

Do you have a newsletter that I could subscribe to?

[Rob in CT]

Sadly, I see no indication that Obama would veto something like this.

Bloody hell. I thought we were coming out of our 9/11-induced period of insanity.

[Jay C]

Awful though this bill is, [insert IANAL disclaimer] don't these proposals ignore (if not actively attempt to circumvent) several Articles and Amendments of the Constitution? Would an awful thing like McCain/Lieberman (G*d, there's a hideous concept right there!) be struck down, even IF enacted?

IMO: the "'soft on terror' cudgel" is the whole point of this exercise: what are the chances of it actually coming to a vote, still less passing?

[Ugh]

Bloody hell. I thought we were coming out of our 9/11-induced period of insanity.

It's a permanent condition started by Nixon. So, no.

The bill asks the President to determine criteria for designating an individual as a "high-value detainee" if he/she:

Gender equity!

or (5) such other matters as the President considers appropriate.

Presumably this includes if the POTUS thinks you're a dick. So I guess I'm in.

[Howard GIlbert]

All this bill does is to create a short period (if possible 48 hours) in which a terrorist can be interviewed by intelligence instead of law enforcement to decide if he is an enemy soldier on a military mission of sabotage or a civilian engaged in a criminal act of terrorism. If they decide he is not a soldier, he is Mirandized and turned over to the FBI. If they decide he is a soldier, he is held by the military.

In the Hamdi decision, the Supreme Court ruled that an enemy combatant (soldier in a foreign army engaged in an armed conflict with the US) can be detained by the military for the duration of hostilities even if he also happens to be a US citizen. They also ruled that citizens are entitled under the constitution to challenge their classification as enemy combatants before a tribunal that in practice has proven to be the US District Court having jurisdiction over the detention facility. The government has to present evidence to the court proving that the detainee is an enemy solider, and the detainee can challenge the government evidence and present evidence of his own. This is not a "trial" because being an enemy soldier in a foreign army is not a crime.

It is true that under this bill Congress explicitly authorizes the detention that the Supreme Court found in Hamdi to have been implicitly authorized by the AUMF passed after 9/11. However, that does not change the law, it just adds an explicit Congressional approval to what is already allowed.

Padilla was arrested at the US Customs counter in the international arrivals area of O'Hare Airport, which is not legally US soil. He was brought onto US soil already in FBI custody. He was held without charge because, as I said, being an enemy soldier in wartime is not a crime, but it is a legal justification to be held as a POW for the duration of hostilities. Padilla told the FBI that he was an enemy soldier, described his enlistment, basic training, superior officers, members of his unit, special training, and the military mission he was on when captured. Of course, none of this evidence could be introduced into a trial since being an enemy soldier is not a crime. It can, however, come before a judge, but only if Padilla initiates the process. He had a constitutional due process right under Hamdi to challenge his classification as an enemy combatant and force the government to bring its evidence into court. He never exercised this right, never contested his combatant classification, never asked for his Hamdi hearing. His case was in litigation for 3.5 years under Habeas Corpus, but only on points of law that did not involve a claim that he was not, in fact, an enemy combatant.

In the end the Fourth Circuit ruled in Padilla v Hanft that he could be detained under the law if one assumed the unchallenged government claims of fact. This ruling, which is still in force and is cited as precedent in other cases, shows specifically that the detention of enemy combatants (who do not challenge their combatant status or whose status has been determined by the Federal District Court) is already legal under existing law and, therefore, the explicit authorization for that detention provided in this bill does not change anything.

The President cannot detain terrorists. He can only detain enemy soldiers (who travel to an enemy country and enlist in a foreign army as Hamdi, Padilla, and al Marri did). They can be captured overseas or attempting to sneak into the country on a military mission of sabotage (as Padilla was). They can be captured on US soil (as al Marri was but Padilla was not). The first POW of WWII, Ensign Sakamaki, was captured on US soil the day after Pearl Harbor. When an enemy country decides to attack US soil and sends members of its armed forces who may or may not be US citizens on such an attack, whether using conventional military forces like Pearl Harbor or sending them into the US dressed as civilians as happened with the 9/11 hijackers and Padilla, then enemy soldiers attacking the US tend to be captured on US soil (just as bank robbers captured in the act tend to be found in a bank). However, the ability to capture and detain without trial a Japanese sailor sitting on a beach next to a grounded midget submarine does not translate somehow into a power for the President to simply detain anyone he wants any time he wants, and neither does the capture and detention of Jose Padilla as an enemy saboteur.

The only thing new in the bill is the 48 hour period in which intelligence can determine if a new terrorist appears to be an enemy solider or a civilian criminal.

[Ugh]

I loves me some good Germans.

[Eric Martin]

Would an awful thing like McCain/Lieberman (G*d, there's a hideous concept right there!) be struck down, even IF enacted?

Most likely.

However, the ability to capture and detain without trial a Japanese sailor sitting on a beach next to a grounded midget submarine does not translate somehow into a power for the President to simply detain anyone he wants any time he wants, and neither does the capture and detention of Jose Padilla as an enemy saboteur.

However, if there is no court process to challenge being falsely accused of being a Jose Padilla, then it is, de facto, the power to simply detain anyone he/she wants any time he/she wants.

Again, by relying on the Executive branch's determination alone, we get into problems. The executive can always arrest anyone it wants, but it can't imprison that person without a trial indefinitely. At least, Constitutionally.

[Eric Martin]

All this bill does is to create a short period (if possible 48 hours) in which a terrorist can be interviewed by intelligence instead of law enforcement to decide if he is an enemy soldier on a military mission of sabotage or a civilian engaged in a criminal act of terrorism. If they decide he is not a soldier, he is Mirandized and turned over to the FBI. If they decide he is a soldier, he is held by the military.

Again, if the executive decides he is what the executive accuses him of being, then he is held indefinitely without a trial.

That is quite reactionary.

From the statute:

"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."

[Carleton Wu]

When an enemy country decides to attack US soil

If AQ were a country, your analysis would be at least internally consistent. But as it stands, I don't see why members of various right-wing militias cannot also be said to have "declared war on America" & be subject to indefinite detention etc. Or how we distinguish between members of criminal gangs or conspiracies and "enemy soldiers" when no national armed force is involved. Even street gangs "pose[s] a threat of an attack on civilians". Radical environmental groups and recalcitrant ranchers/farmers have "pose[d] a threat [to] civilian facilities."

But that ignores the deeper objection- the framers certainly did not go through their intense debate over the Bill of Rights while thinking that it could be circumvented at any time, for any citizen, by Presidential fiat. Imagining that the CIC powers trump the Bill of Rights on the President's say-so is ludicrous.

[cleek]

Padilla was arrested at the US Customs counter in the international arrivals area of O'Hare Airport, which is not legally US soil.

whose soil is it ?

[Bernard Yomtov]

All this bill does is to create a short period (if possible 48 hours) in which a terrorist can be interviewed by intelligence instead of law enforcement to decide if he is an enemy soldier on a military mission of sabotage or a civilian engaged in a criminal act of terrorism. If they decide he is not a soldier, he is Mirandized and turned over to the FBI. If they decide he is a soldier, he is held by the military.

Your description leaves out a rather important step. When and how is it decided that someone is a terrorist who can be thus "interviewed." (Do they ask about favorite movies or something?)

Apparently, the answer is, "The President says so," at which point the interviews determine simply what jail the individual is sent to.

There doesn't seem to be much in the way of things like "probable cause," "evidence," "standards of proof," "right to counsel," (during the initial interview), etc.

Seems scary to me.

[Sebastian]

"If they decide he is not a soldier, he is Mirandized and turned over to the FBI. If they decide he is a soldier, he is held by the military."

Let's not lose sight of the fact that we already non-hypothetically tortured innocent people because we thought they were Al-Qaeda 'soldiers'.

So, they decide he is a soldier AND ARE WRONG.

What now?

[Jesus Ochoa]

"presumption of doubt as a matter of course" - hell no, presumption as a matter of law.

[Howard GIlbert]

The executive decides who can be interviewed for 48 hours. If they decide he is a criminal, he is Mirandized and charged. If they decide he is an enemy combatant, he is turned over to the military at which time he has both a Boumediene right to request a Habeas hearing and a Hamdi right to contest his classification as a combatant before a Federal District court. Either way he gets his day in court, but only the criminal path is called a trial. The combatant path is called a "hearing" but it is still up to the judge, not the executive, to decide if there is a basis to detain him.

While the executive gets to choose which of the two paths to take, in ordinary criminal cases the prosecutor always has the choice of what charges to make. This is nothing new.

There is a lower standard of proof for detaining someone as an enemy combatant than there is for convicting someone of a crime. Still, if Padilla is your only example, he never claimed to be an innocent civilian. In the last 150 years, only 12 saboteurs have been captured in the US or at its borders: 8 German saboteurs in 1942 under FDR, 2 German saboteurs in 1945 under Harry Truman, and Padilla and al Marri in 2002 and 2003 by Bush. Of the 12, only al Marri claimed to not actually be an enemy combatant. He was given him Hamdi hearing but refused to participate, and eventually plead guilty to criminal charges brought by the current administration. We do not know what evidence existed against al Marri from the papers and computers captured with KSM just before he was classified as a combatant.

There may be a problem with a hypothetical future administration that would use the lower level of proof to abuse this mechanism. On the other hand, this system has been in force for 70 years and was not abused through the Korean War, Red scare, Vietnam War, Watergate, etc. There was lots of opportunity for abuse that was never exploited. I would suggest waiting for an actual abuse to complain about a system that has existed for so long without a example of abuse.

[Sebastian]

"Still, if Padilla is your only example"

My examples are drawn from the torture regime. In which we were assured that only the worst of the worst were/would be tortured, but in fact we tortured and apparently even killed people who weren't even Al Qaeda members at all. (click on the torture topic list on the right for about 4 years of reporting on it). I don't think it is too much of a stretch to believe that if we screwed it up with torture, and we did, that the lesser offense of screwing it up with detention is likely.

[Eric Martin]

If they decide he is an enemy combatant, he is turned over to the military at which time he has both a Boumediene right to request a Habeas hearing and a Hamdi right to contest his classification as a combatant before a Federal District court. Either way he gets his day in court, but only the criminal path is called a trial. The combatant path is called a "hearing" but it is still up to the judge, not the executive, to decide if there is a basis to detain him.

That's not what the statute says. That might be what happens if the SCOTUS intervenes and rules that the statute is not legit, but I prefer not to pass the bill and hope it gets shot down or modified. Better to just not pass it.

While the executive gets to choose which of the two paths to take, in ordinary criminal cases the prosecutor always has the choice of what charges to make. This is nothing new.

Actually, it's quite new because when a prosecutor decides on charges, the suspect goes to trial on those charges. Under the current law, when the prosecutor decides on charges, the suspect resides in limbo indefinitely without a trial.

Kind of a big difference.

There may be a problem with a hypothetical future administration that would use the lower level of proof to abuse this mechanism. On the other hand, this system has been in force for 70 years and was not abused through the Korean War, Red scare, Vietnam War, Watergate, etc. There was lots of opportunity for abuse that was never exploited. I would suggest waiting for an actual abuse to complain about a system that has existed for so long without a example of abuse.

Um, no. I object when a law grants too much power to the executive (or other branch of government). Not wait for an abuse, then complain. That seems backasswards when we're talking about radical, reactionary upending of the Constitutional order.

Further, anyone who doesn't think there was a problem with executive overreach during COINTELPRO and the CIA's domestic activities during Johnson and Nixon either doesn't know what happened or has a radical view of what "abuse" of the legal system would look like.

In the last 150 years, only 12 saboteurs have been captured in the US or at its borders: 8 German saboteurs in 1942 under FDR, 2 German saboteurs in 1945 under Harry Truman, and Padilla and al Marri in 2002 and 2003 by Bush. Of the 12, only al Marri claimed to not actually be an enemy combatant

Here, you are begging the question. al-Qaeda is not an army per se, nor are accused terrorists per se saboteurs. To assume their guilt based on the charges alone is a perversion of the US justice system. Nor is there any requirement that the statute be limited to al-Qaeda. The discretion is quite broad in terms of the POTUS deeming someone a threat.

[Mike Schilling]

in ordinary criminal cases the prosecutor always has the choice of what charges to make. This is nothing new.

In ordinary criminal cases:

1. The suspect is not put in the custody of the prosecutor.

2. The suspect has the right to counsel.

3. An independent judge, that is, one who does not work for the prosecutor, must agree that there is probable cause to keep the suspect in custody, and can set bail.

So, yes, it's quite new.

[Eric Martin]

Also, Padilla was kept in solitary for so long (and sense dep) that the guy went nuts. Hard to treat his defense as that of a rational actor post-extreme torture.

[Ugh]

I can't believe we're still having this fncking conversation 8+ years on. Greatest generation to bed wetting cowards in my father's lifetime. Good on ya, Merica!

[Carleton Wu]

There is a lower standard of proof for detaining someone as an enemy combatant than there is for convicting someone of a crime.

And there are Constitutional protections in the 5th and 6th amendments. Those cannot be circumvented by claiming a new category of 'wartime' accusations that can be theoretically be levied against any citizen at any time.

Still, if Padilla is your only example, he never claimed to be an innocent civilian

You really need to address Sebastian's repeated point that the US has actually made errors regarding AQ membership. You are claiming that the US has not abused the power to classify people as combatants. This is demonstrably incorrect.

Finally, you still havent' dealt with the flaw in your logic pertaining to countries. Your argument specifically invokes countries with which the US is at war. Al Qaeda is not a country. Or, if they are, perhaps the militia movement is also a country. Or Greenpeace. Both have attacked civilians or property.

[Howard Gilbert]

In 1780 Major John Andre was captured by Continental soldiers behind our lines. He was dressed in civilian clothes, pretending to be a civilain, returning from a meeting with Benedict Arnold. He had the plans for the defense of West Point stuffed in his boot. He was detained in military custody and tried before a court of general officers appointed by General George Washington.

Today enemy combatants captured overseas or passing through our lines of defense in civilian clothes pretending to be a civilian are held under the exact same law that George Washington used to hold Andre. Not the modern equivalent of some law, but the exact same law. It is international law, not some US domestic statute. It applies equally to the detention of enemy soldiers by the US and the detention of US soldiers by the enemy. Congress can pass laws regulating the conditions of detention and providing some process, but ultimately the authority to detain arises from international military law and not from any domestic source. So this idea that an enemy soldier, even one who is a US civilian who traveled overseas and joined an enemy army in a foreign country, can be detained by the US without criminal charges or a criminal trial in civilian court is actually an idea that predates the US and the constitution. It has been in place for as long as the country has existed.

Jose Padilla went to Afghanistan and joined the Afghan army. Whatever al Qaeda is, it never controlled a country and never had an army, although it was part of the Afghan government and tended to recruit and train troops for their Army. Padilla did not join or enlist in al Qaeda, or for that matter in the Taliban. He joined the Afghan Army. That Army and government retreated into the relative safety of the ungoverned Pakistani tribal areas, but it is still in the field fighting and killing NATO troops today.

[By the way, the international area of a port or airport is legally regarded as "the border" of the US. It is not legally US soil in the sense that a passenger arriving on a plane does not acquire the rights he would have if he is on US soil until he clears Customs and passes through the doors that separate Customs from the main part of the airport.]

Padilla was identified as an enemy soldier in Dec, 2001 when a truckload of enemy military personnel files fell into allied hands in Afghanistan. He was located on April 1, 2002 when he entered the US embassy in Cairo to request a replacement passport. He was followed by US intelligence for a month, then was surrounded (although he didn't know it) by intelligence agents as he flew to the US, and was arrested by the FBI at the Customs counter. He had not been on US soil for four years, the last two of which he spent as a solider in the Afghan Army in Afghanistan and then across the border in Pakistan. Yet his case is described as if he was just some guy who was picked up on a US street and held without charge. If the US wanted to, it would have been simpler and faster to have the Egyptian secret police arrest and question him.

[Eric Martin]

Jose Padilla went to Afghanistan and joined the Afghan army.

What? Which faction of the Taliban did he enlist with?

So this idea that an enemy soldier, even one who is a US civilian who traveled overseas and joined an enemy army in a foreign country, can be detained by the US without criminal charges or a criminal trial in civilian court is actually an idea that predates the US and the constitution. It has been in place for as long as the country has existed.

You are begging the question again, treating al-Qaeda as a foreign army.

Whatever al Qaeda is, it never controlled a country and never had an army, although it was part of the Afghan government and tended to recruit and train troops for their Army.

No, it was never part of the Afghan government. This is simply factually incorrect.

Padilla did not join or enlist in al Qaeda, or for that matter in the Taliban. He joined the Afghan Army.

The Afghan Army apart from the Taliban? How is this possible? And were we fighting that army?

[Jacob Davies]

Jose Padilla went to Afghanistan and joined the Afghan army.

And as we all know, returned to the United States and began a reign of terror that shall last a thousand years - as we now see, blood runs in the street, missing white women are decapitated on Oprah, cries of jihad echo in the Wal-Marts and Piggly Wigglies as good Christians too slow to run away are mowed down by machinegun fire, Washington D.C. is a smoking, radioactive ruin just like in Independence Day, and all kittens and puppies are forced to swear a personal oath of allegiance to Osama bin Laden.

No, wait, I'm sorry, that was Timeline B. My mistake. Here in Timeline A Padilla got caught, tried, convicted, and is serving out his sentence. But otherwise, he makes the perfect example of how we can't possibly use ordinary criminal procedures against terrorists or our society will collapse and explode, cause all of that other stuff could've totally happened. Especially the bit about the kittens - heartbreaking AND terrifying.

[Sebastian]

I'm not sure it is helpful to focus only on executive power 'abuses'. I think it opens the conversation up to defensiveness.

But as a conservative, I worry not *only* about abuses, but also government mistakes. I don't think that we tortured and possibly killed these people just for fun. I think the government was overreacting and made mistakes. The problem is that the bill sets up the possibility of making similar mistakes, and they are similarly difficult to correct because so many of the self-correcting and oversight functions that we normally think are important are removed.

So my question is: How do we protect people who an administration mistakenly labels 'terrorist' when they are being held without access to lawyers or their families or other traditional methods of protecting against such mistakes?

Also, I'm completely unclear as to what you think we are gaining by removing the protections. What added value does the government get out of it? What exactly are we sacrificing these protections for?

[Carleton Wu]

Jose Padilla went to Afghanistan and joined the Afghan army. Whatever al Qaeda is, it never controlled a country and never had an army, although it was part of the Afghan government and tended to recruit and train troops for their Army. Padilla did not join or enlist in al Qaeda, or for that matter in the Taliban. He joined the Afghan Army

You are rewriting the justifications actually used to support your case. Padilla was held as an enemy combatant because of he was "closely associated with al Qadea" a group "with which the United States is at war" (from the Second Circuit decision via wikipedia).

Fighting in a foreign military may invalidate one's citizenship, but I don't believe that it constitutes a crime. Fighting against the United States might be treason, but it is not terrorism (Padilla was eventually convicted of conspiracy to murder US nationals and to provide material support to terrorists).

So your claim that Padilla Padilla did not join or enlist in al Qaeda does not seem to be accurate.

Even if it were the case that Padilla was primarily associated with the Afghan military and was held as a combatant related to that service, it would not change the actual law's applicability to non-governmental organizations. The law specifically mentions Al Qaeda. It does not mention the Afghani Army.

Today enemy combatants captured overseas or passing through our lines of defense in civilian clothes pretending to be a civilian are held under the exact same law that George Washington used to hold Andre.

The difference between the cases you continue to cite and the situation at hand is that those cases involved the US being at war with another country. Al Qaeda is not a country.

[Marty]

While I an always nervous when we start codifying the power of the executive and military rather than just leaving it to their discretion as it is presently, I am a more than a little skeptical of this "Al Qaeda is not a country" persistence. They are an identifiable enough enemy that Congress was comfortable declaring war on them. Even if you wanted to limit the original war to Afghan nased AQ there is plenty of precedent for chasing soldiers and leaders of a dispersed army around the world.

[Howard Gilbert]

First of all, the US had its hands tied in the Second Circuit because everything Padilla said, even the fact that he was talking at all, was classified Top Secret. Besides, the Second Circuit decision was vacated by the Supreme Court. The decision on the merits of that case are found in the Supreme Court decision in Hamdi, and the specific reasons for Padilla's detention are enumerated in the Fourth Circuit decision in Padilla v Hanft which is still in force and is the last decision in the case.

I would agree that if all you knew about Padilla was the doubletalk and nonsense that the US originally introduced in support of its position in the Second Circuit then the whole case would seem to be phony.

Which law mentions al Qaeda? The AUMF only references the countries, organizations, and people responsible for 9/11 and those that gave them aid or harbored them. As to this law, there is an "or" between being a member of al Qaeda and other critera for being interviewed.

During the Korean War, the US and UN recognized neither the DPRK, the PRC, or the existence of any country named North Korea (Korea as a whole was recognized, but the division between North and South was an occupation boundary, not a national boundary). If you can only go to war with a country, exactly what country was it we were fighting? Besides, if you view the Revolutionary War from the other side, the British failed to recognize the Continentals as being a country, just as the US failed to recognize the CSA during the Civil War. Yet in all these conflicts the US took prisoners and US soldiers were taken prisoner. The Laws of War extend farther than just wars between countries that recognize each other.

[Mike Schilling]

How do we protect people who an administration mistakenly labels 'terrorist' when they are being held without access to lawyers or their families or other traditional methods of protecting against such mistakes?

And when the people involved in making that determination are all part of the Executive Branch. The traditional methods involve adversary procedures, or at least the independent judiciary. Here, groupthink is almost inevitable.

By the way, doesn't "is a member of al Qaeda or a terrorist group affiliated with al Qaeda" make this a bill of attainder?

[Carleton Wu]

They are an identifiable enough enemy that Congress was comfortable declaring war on them.

It's not clear that Congress can declare war on a non-country and thereby render the US citizen members of that non-country subject to military tribunals etc. Can Congress declare war on Greenpeace or the NRA, and the President subsequently use the army to round up the citizen members of those organizations? Not "will they"- do they have that power? Can the Bill of Rights be nullified so easily?

[Tony P.]

Marty, I can accept that you believe al-Qaida is close enough to a "country", and that Congress close enough "declared war" on it. I'm not sure it's a helpful stance to have on record if you ever want to make a strict-constructionist argument on any question in the future, however.

--TP

[Howard Gilbert]

"It's not clear that Congress can declare war on a non-country and thereby render the US citizen members of that non-country subject to military tribunals etc."

Actually, we went to war with the Confederate States of America, a non-country (from our point of view). All of the CSA were US citizens, Congress never even bothered to declare war. They were subject to military tribunals, etc.

We went to war in Korea with a non-country. The Viet Cong was a non-country. We dispatched US forces into Mexico to capture or kill Poncho Villa after he attacked US towns and troops in New Mexico. We dispatched Marines against the Barbary Pirates. Of course, in none of these cases did Congress formally declare war, so maybe we can fight a war with a non-state party but cannot formally declare it to be a war from our end.

In the modern world, the International Committee of the Red Cross guidance on international law recognizes the option of a formal armed conflict between a country and armed units of a non-state party engaged in continuous combat function (then there are pages explaining what those terms mean exactly). So even if the Taliban forces have transitioned from the Army of Afghanistan to the armed units of the government now in exile formerly in control of Afghanistan, an armed conflict between them and the US is still clearly defined by international law.

[Phil]

While I an always nervous when we start codifying the power of the executive and military rather than just leaving it to their discretion

So, not a fan of the Constitution or of limited government. Noted.

I am a more than a little skeptical of this "Al Qaeda is not a country" persistence. They are an identifiable enough enemy that Congress was comfortable declaring war on them.

Much like a skilled prosecutor can indict a ham sandwich, in the days following 9/11, you could have gotten Congress to authorize the use of force against my cats without any effort at all.

[Marty]

TP, yeah but from a real world perspective "authorizing use of military force" is the late 20th century equivalent.

Both the executive and Congress treated them the same.

[Marty]

Phil. The first part was not so obvious, I guess, sarcasm.

[Jacob Davies]

I don't have a particular problem with the idea that the US can be "at war" with AQ outside the US. But inside the US - it ain't 1778, it ain't 1863, and it's not even 1942. The US is in no danger of being destroyed, invaded, or conquered by Al Qaeda, the Taliban, or anyone else. And since there have been, like, three cases that could conceivably fall under this doctrine, and all of them have been successfully dealt with in the criminal justice system*, I'm really not seeing the pressing need for formalizing something that is pretty much guaranteed unconstitutional and in case self-evidently unnecessary. Unless, of course, you just want to posture about being tough on terrorists because you have a nasty primary challenge from the far-right, I guess.

* Is it possible to read that phrase without hearing the Law & Order "dun-DUN" sound?

[Carleton Wu]

Actually, we went to war with the Confederate States of America, a non-country (from our point of view).

The Constitution also gives Congress the power to "suppress Insurrections". I think this qualifies. Congress also has the power "to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations".

What Congress does *not* have the power to do is abridge the Bill of Rights. And ex parte Milligan speaks clearly on the matter: even during wartime, as long as the civil court system is functioning then citizens have the right to them.

Reiterating my earlier point: the founders would not have bothered with the Bill of Rights if they felt that the President could, by fiat, declare individuals to be enemies of the state and in doing so deprive them of all of those rights.

[Eric Martin]

So even if the Taliban forces have transitioned from the Army of Afghanistan to the armed units of the government now in exile formerly in control of Afghanistan, an armed conflict between them and the US is still clearly defined by international law.

al-Qaeda is not the Taliban. This is simply factually incorrect.

The Laws of War extend farther than just wars between countries that recognize each other.

But this isn't even close.

Regardless, this is different. As CW says:

What Congress does *not* have the power to do is abridge the Bill of Rights. And ex parte Milligan speaks clearly on the matter: even during wartime, as long as the civil court system is functioning then citizens have the right to them.

[Ugh]

Is it so hard to divide the world into (a) you're a criminal and we will give you a trial and throw you in prison if found guilty; (b) you're a POW and we will treat you as we treated, e.g., the captured Germans in WWII; or (c) gosh, you're innocent, we'll let you go?

Really, the Bush II administration finished 80% of what Nixon started, the next Republican administration will complete the job.

[Sebastian]

"Really, the Bush II administration finished 80% of what Nixon started, the next Republican administration will complete the job."

Considering the Obama administration's current stance on detention, do we have any reason at all to believe he would oppose the bill we are discussing?

[Eric Martin]

Sadly no Seb.

Although I would be delighted to be proven wrong.

[Ugh]

Seb,

As Eric said, no we don't. In fact I had originally drafted my comment to accuse the Obama administration of advancing the Nixon ball and not sure why I deleted it. I guess b/c of marginal improvements over Bush.

[jonnybutter]

If the bill passes both houses, and Obama vetos it,

yes, that sentence sounds rather wistful, doesn't it?

Nice to agree so emphatically with Sebastian for a change of pace!