Creeping Caesarism: The Enemy Belligerent Act of 2010

Authoritarianism doesn’t always come with bells, whistles and goose-steps. More typically, it develops in a series of interlocking steps – a state of emergency (“war on terror”) here, a couple of indefinite detentions and Presidential hit orders there, their eventual legal codification – that while on their own seem justifiable and even innocuous, when taken together generate a pernicuous influence on the democratic polity. Furthermore, the gradualism or “creeping normalcy” of these processes insulate the gradual amassment of powers by the power ministries from challenge and conceals it from the eyes of a largely apathetic citizenry and compliant mass media. Nonetheless, in retrospect, specific precedents and laws will stand out: say, Article 58 in the early USSR, or…

While browsing Glenn Greenwald’s blog today, I came across a bill proposed by McCain and Lieberman (both tireless promoters of the freedom agenda abroad if not at home) back in March 2010 that, if passed, may well come to be seen as the tombstone to meaningful civil rights and rule of law in the US. Welcome to the S. 3081 “Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010.” First, the definitions:

SEC. 6. DEFINITIONS. …

(9) 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.

This basically replaces the Bush-era concept of the “alien enemy combatant” with “unpriveleged enemy belligerent”. At least they no longer discriminate against non-American citizens. 😉

In particular, note that in our age, the concept of “material support” is coming to be interpreted in the broadest terms (it includes, amongst other things, to “to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.”)

SEC. 2. PLACEMENT OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS IN MILITARY CUSTODY.

5(a) Military Custody Requirement- 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.

This not only allows but REQUIRES all individuals just SUSPECTED of “materially supporting” (the vaguely defined) “hostilities against the United States”, be he arrested in the Empire or its colonies, to be INCARCERATED by the military. With help from particularly liberal interpretations of the Espionage Act, the opportunities are endless!

(b) Reasonable Delay for Intelligence Activities- An individual who may be an unprivileged enemy belligerent and who is initially captured or otherwise comes into the custody or under the effective control of the United States by an intelligence agency of the United States may be held, interrogated, or transported by the intelligence agency and placed into military custody for purposes of this Act if retained by the United States within a reasonable time after the capture or coming into the custody or effective control by the intelligence agency, giving due consideration to operational needs and requirements to avoid compromise or disclosure of an intelligence mission or intelligence sources or methods.

These checks are just subjectivity galore, offering no real protections. What constitutes a “reasonable time”? What’s “due consideration to operational needs” in an endless-by-definition “war on terror” which many of the supporters of this bill gleefully proclaim will last decades?

Now for the nuts and bolts of how the status of “unprivileged enemy belligerent” is to be conferred.

SEC. 3. INTERROGATION AND DETERMINATION OF STATUS OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS. …

(a) Establishment of Interrogation Groups-

(2) COMPOSITION- Each interagency team under this subsection shall be composed of such personnel of the Executive Branch having expertise in matters relating to national security, terrorism, intelligence, interrogation, or law enforcement as the President considers appropriate. The members of any particular interagency team may vary depending on the skills most relevant to a particular case. …

(b) Interrogations- …

(2) UTILIZATION OF OTHER PERSONNEL- A high-value detainee interrogation group may utilize military and intelligence personnel, and Federal, State, and local law enforcement personnel, in conducting interrogations of a high-value detainee. The utilization of such personnel for the interrogation of a detainee shall not alter the responsibility of the interrogation group for the coordination within the Executive Branch of the interrogation of the detainee or the determination of status and disposition of the detainee under this Act.

(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- 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.

If the glorious Government suspects you then you have no rights. Props to them for spelling it out clearly.

(c) Determinations of Status- …

(1) PRELIMINARY DETERMINATION BY HIGH-VALUE DETAINEE INTERROGATION GROUP- 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. The interrogation group shall, after consultation with the Director of National Intelligence, the Director of the Federal Bureau of Investigation, and the Director of the Central Intelligence Agency, submit such determination to the Secretary of Defense and the Attorney General.

All unelected; unaccountable.

(2) FINAL DETERMINATION- As soon as possible after receipt of a preliminary determination of status with respect to a high-value detainee under paragraph (1), the Secretary of Defense and the Attorney General shall jointly submit to the President and to the appropriate committees of Congress a final determination whether or not the detainee is an unprivileged enemy belligerent for purposes of this Act. In the event of a disagreement between the Secretary of Defense and the Attorney General, the President shall make the final determination.

Well that’s reassuring! But things are about to get even more interesting…

(d) Regulations-

(2) 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.

The emphasis on “potential threats” – everyone is if you’re paranoid enough – is disturbing enough. But the final point gives practically unlimited leeway to the President, to Obama and his successors, and is otherwise known as “rule by man“, or Caesarism.

SEC. 4. LIMITATION ON PROSECUTION OF ALIEN UNPRIVILEGED ENEMY BELLIGERENTS.1

(a) Limitation- 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)

(b) Applicability Pending Final Determination of Status- 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).

If I understand it correctly, this basically reinforces the essential points of the Military Commissions Act of 2006. Once a foreigner suspected of being an ememy combatant / enemy belligerent is captured, not even the (minimal) protections offered to US citizens will be made available.

SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS.

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.

The reference to the Geneva Conventions is irrelevant filler: it has already been determines that these protections don’t apply to unlawful enemy combatants. Since the “war on terror” is an Orwellian permanent war, it implies that the detentions can in fact be as long as the system wants it to be (unless cut short by “intentional homicide” or accidents).

One has to be deluded to think that this bill will only be used against real terrorists if it passes. There are a whole lot of other targets for the picking by the power elites:

• Environmentalists, climate scientists: Are already regularly harassed, marginalized, occassionally branded as “eco-terrorists.” Note that one of the sponsors of the bill, Jim Inhofe, is a rabid AGW denier who has called for the criminal prosecution of climate scientists. No doubt he will have his own peculiar ideas of what constitutes hostilities against the US.
• Muslim activists: For every real Islamic terrorist who is swept up by the security services, it seems there are at least ten or more whose only sin was being engaged with Islamic charities or activist causes or purposefully set up by the FBI.
• Wikileaks: Prominent political figures in the US have equated Assange with terrorists, with Sarah Palin calling for him to be hunted down like Osama bin Laden. Imagine the possibilities if someone like her were to be President with this law on her side. Meanwhile, the Bradley Manning imprisonment shows that grim reality (a US citizen held in stiffling solitary confinement for months without charge) remains well ahead of its own impending legalization / normalization.
• Pirates: With the soaring corporate takeover of politics and the influence of the MPAA and other dedicated opponents of information freedom, will pirates be “information terrorists”?
• Tea Party: While the GOP may entertain those elements of Tea Party populism that benefit their rich backers, they have zero interest in accomodating those Tea Party off-shoots that actually advocate Establishment-contrary policies such as ending Wall Street bailouts or paring down the military-industrial complex. Aren’t these also a potential terrorist threat?

This is a bill that must be watched closely, if or once it gets round to a hearing or markup; its passage unlikely today, but vastly more probable if there is another terrorist act (even a failed one). Note that a decade ago, and maybe even five years ago, such a “extremist, tyrannical and dangerous” (in Greenwald’s words) piece of legislation would have been unimaginable.

At least in its current form, adoption would open the floodgates to a massive retreat of civil liberties – especially under future Presidents operating with lowered ethical standards and a more accomodating and conservative Supreme Court, and higher dependencies on corporate sponsors and unaccountable security agencies.