A Detention Bill You Ought to Read More Carefully (IMPORTANT)

[h3rm35]

A Detention Bill You Ought to Read More Carefully

U.S. citizens suspected of terrorist activity could be detained by the military on U.S. soil indefinitely
By Marc Ambinder
Why is the national security community treating the "Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010," introduced by Sens. John McCain and Joseph Lieberman on Thursday as a standard proposal, as a simple response to the administration's choices in the aftermath of the Christmas Day bombing attempt? A close reading of the bill suggests it would allow the U.S. military to detain U.S. citizens without trial indefinitely in the U.S. based on suspected activity. Read the bill here, and then read the summarized points after the jump.
According to the summary, the bill sets out a comprehensive policy for the detention, interrogation and trial of suspected enemy belligerents who are believed to have engaged in hostilities against the United States by requiring these individuals to be held in military custody, interrogated for their intelligence value and not provided with a Miranda warning.

(There is no distinction between U.S. persons--visa holders or citizens--and non-U.S. persons.)

It would require these "belligerents" to be coded as "high-value detainee[s]" to be held in military custody and interrogated for their intelligence value by a High-Value Detainee Interrogation Team established by the president. (The H.I.G., of course, was established to bring a sophisticated interrogation capacity to the federal justice system.)

Any suspected unprivileged enemy belligerents considered a "high-value detainee" shall not be provided with a Miranda warning.

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.

Note that the president himself doesn't get to make the call.

This article available online at:

http://www.theatlantic.com/politics/arch...lly/37116/

[Melchor]

This bill I'm assuming was supposedly put forth as a response to the crotch bomber and proposed KSM trials. However, some of the provisions on who makes what determinations are disturbing. They are basically trying to commit jurisdiction stripping from the courts. Other than the removal of Article III court review for aliens though most of this is already provided in the John Warner Defense Authorization Act. Unless Sotamayor changes from Souter's position, the Supreme Court is unlikely to read this as precluding habeas review of the status determination though. The most disturbing aspect to me is the interrogation team which reads like a federal SWAT team/Abu Ghraib CACI torture squad.

[h3rm35]

McCain-Lieberman Bill Flirts with Totalitarianism

March 10, 2010

in Commentary

By Anthony Gregory

(The Intelligence Daily) — Former Democratic VP candidate Joe Lieberman and former GOP presidential candidate John McCain have introduced a new detention policy bill in response to the Christmas Day underwear bomber. From The Atlantic: “A close reading of the bill suggests it would allow the U.S. military to detain U.S. citizens without trial indefinitely in the U.S. based on suspected activity.”

This is another reminder of why, as horrible as Obama is on practically every issue, his competition was likely no better. Not that I expect Obama to veto this monstrosity. On detention policy, he has proven himself to be approximately as bad as his predecessor, if not worse.

Can we build a bipartisan police state, complete with the destruction of the last vestiges of due process, while we distract the public with political sideshows and debates over whether the government should control 60% or 61% of the economy? Yes we can.

Anthony Gregory is a Research Analyst at The Independent Institute. He earned his bachelor’s degree in American history from the University of California at Berkeley and gave the undergraduate history commencement speech in 2003. Mr. Gregory is also the recipient of the Ron Paul Liberty in Media Award for his Independent Institute article, “An Anniversary that We Must Never Forget.”

[h3rm35]

The McCain-Lieberman Police State Act

March 26, 2010

in Commentary

By Stephen Lendman

(The Intelligence Daily) — If enacted, it will advance what this writer addressed in a December 2007 article titled, “Police State America – A Look Back and Ahead,” covering numerous Bush administration laws, Executive Orders (EOs), National and Homeland Security Presidential Directives, edicts, and various illegal acts targeting designated domestic and foreign adversaries, dissent, civil liberties, human rights, and other democratic freedoms.

Straightaway post-9/11, George Bush signed a secret finding empowering the CIA to “Capture, Kill or Interrogate Al-Qaeda Leaders.” He also authorized establishing a covert global gulag to detain and interrogate them without guidelines on proper treatment.

Other presidential directives ordered abductions, torture and indefinite detentions. In November 2001, Military Order Number 1 empowered the Executive to capture, kidnap or otherwise arrest non-citizens (and later citizens) anywhere in the world for any reason and hold them indefinitely without charge, evidence, due process or judicial fairness protections of law.

The 2006 Military Commissions Act authorized torture and sweeping unconstitutional powers to detain, interrogate and prosecute alleged suspects and collaborators (including US citizens), hold them (without evidence) indefinitely in military prisons, and deny them habeas and other legal protections.

Section 1031 of the FY 2010 Defense Authorization Act contained the 2009 Military Commissions Act, listing changes that include discarding the phrase “unlawful enemy combatant” for “unprivileged enemy belligerent.” More on that below.

Seamlessly, Obama continues Bush administration practices and added others, including:

– greater than ever surveillance;

– ruthless political persecutions;

– preventively detaining individuals ordered released – “who cannot be prosecuted,” he said, “yet who pose a clear danger to the American people;”

– a secret “hit list” authorizing CIA and Pentagon operatives to kill US citizens abroad based on unsubstantiated evidence they’re involved in alleged plots against America or US interests;

– weaker whisleblower protections;

– state secrets privilege to block lawsuits by victims of rendition, torture, abuse or warrantless wiretapping; and

– other anti-democratic measures.

Now, the March 4 S. 3081: Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 to interrogate and detain “enemy belligerents who commit hostile acts against the United States to establish certain limitations on the prosecution of such belligerents, and for other purposes.”

On the Senate floor, John McCain explained it, saying “we still don’t have a clear mechanism, legal structure, and implementing policy for dealing with terrorists who we capture in the (alleged) act of trying to bring about attacks on the United States and our national security interests at home and abroad.”

These suspects have no right to “Miranda warnings and defense lawyers. Instead, the priority and focus must be on isolating and neutralizing the immediate threat and collecting intelligence to prevent” any attacks.

“I (also) believe we must establish a system for long-term detention of terrorists who are too dangerous to release, but who cannot be tried in a civilian court” because no evidence exists to convict them.

At a March 4 press conference, Senator Joe Lieberman told reporters:

“These are not common criminals. They are war criminals. Anyone we capture in this war should be treated as a prisoner of war, held by the military, interrogated for information that will protect Americans and help us win this war and then where appropriate, tried not in a normal federal court where criminals are tried but before a military commission.”

S. 3081 Provisions

The bill imposes harsh police state measures, including:

– targeting anyone worldwide, including US citizens, “suspected of engaging in (or materially supporting) hostilities against the United States or its coalition partners through an act of terrorism, or by other means…;”

– placing such individuals “in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act;”

– transporting them to intelligence officials for more interrogation;

– determining who may be a “high-value detainee (HVD);”

– further interrogating those individuals by a “High-Value Detainee Interrogation Group (HVIG)….utiliz(ing) military and intelligence personnel, and Federal, State, and local law enforcement personnel….;”

– having HVIGs submit their determination to the Defense Secretary and Attorney General after consulting with the Directors of National Intelligence, FBI, and CIA. “The Secretary of Defense and Attorney General (will then) make a final determination and report (it) 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;”

– designating seized individuals “unprivileged enemy belligerent(s);”

– denying them Miranda rights:

– deciding on a “Final (status) Determination” within 48 hours, “to the extent practicable;”

– letting the President establish HVD interrogation group operations and activities, including whether detainees “meet the criteria for treatment as a high-value detainee for purposes of interrogation….,” including the potential threat held individuals pose:

(1) for an attack against America, its citizens, US military personnel or facilities;

(2) their potential intelligence value;

(3) membership in or affiliation with Al Qaeda; and

(4) “such other matters as the President considers appropriate.”

Pending final determination, detainees “shall be treated as unprivileged enemy belligerent(s),” defined as:

“An individual, including a citizen of the United States (to) 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.”

An “unprivileged enemy belligerent” means anyone (with or without evidence) suspected of “engag(ing) in (or materially supporting) hostilities against the United States or its coalition partners,” including alleged Al Qaeda members.

Raised Concerns

Designating individuals “unlawful enemy combatants” or “unprivileged enemy belligerents” places them in legal limbo, contrary to international law, the Constitution, and three recent Supreme Court decisions:

– Rasul v. Bush (2004) establishing US court system jurisdiction to decide if Guantanamo-held non-US citizens were wrongfully imprisoned;

– Hamdi v. Rumsfeld (2004) granting US citizen Yaser Hamdi and other Guantanamo detainees habeas rights to challenge their detentions in federal courts; and

– Hamdan v. Rumsfeld (2006) denying Guantanamo military commissions “the power to proceed because (their) structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”

Obama-ordered preventive detentions (against uncharged persons) and S. 3081 violate international law, the Constitution, and the above Supreme Court decisions.

Writing for the Jurist Legal News & Research, University of Utah Law Professor, Amos Guiora, calls the proposed bill “the latest example of panic-based legislation” in the wake of the (false flag) December airplane bombing and whether alleged 9/11 suspects will be tried in federal or military courts – Khalid Sheikh Mohammed and others falsely charged based on tortured-extracted confessions.

Holding detainees through “end of hostilities in the terrorism paradigm is a euphemism for indefinite detention….subject(ing) an extraordinarily broad group of persons” to cruel and inhumane treatment based on unsubstantiated charges, and denying them due process and judicial fairness.

Guiora calls the proposed law:

“a fundamental miscarriage of justice created by the unconstitutional denial of the right to counsel, the right to remain silent, the right to be free from arbitrary, let alone indefinite detention, and the right to a day in court.” Unfortunately, too often “legitimacy and justification take a back seat” to expediency and the political climate of the times.

As a result, innocent victims are unjustly arrested, called terrorists, interrogated, tortured, indefinitely detained and denied all rights despite constitutional and international law protections.

“Republicans and Democrats alike have failed to articulate, create and implement a lawful interrogation, detention and trial regime for post-9/11 detainees. That is shameful and reflects negatively on two Presidents, the Congress and the Supreme Court.”

The major media also. Their reports hype the threat, pre-determine guilt, and influence public opinion to believe government-charged individuals are dangerous, guilty, and should be confined to deter “terrorism.”

Yet the Constitution’s Fifth Amendment states:

“No person shall….be deprived of life, liberty, or property without due process of law….;” and

The 14th Amendment reads:

No “State (may) deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Yet in a climate of fear and intimidation, everyone is potentially vulnerable to legislative lawlessness if congressional timidity lets S. 3081 pass in an election year.

According to Guiora, it comes down to “the rule of law or the rule of fear.” Protecting American citizens and national security is one thing. Discarding core legal principles to do it reflects the worst elements of police state justice.

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net . Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.