Tuesday, March 9, 2010

Terrorist Until Proven Innocent?

Several of my friends on LiveJournal commented on a bill submitted in the Senate by John McCain and Joe Lieberman- a bill which is, to all appearances, a direct attempt to block the trial of Khalid Sheik Mohammed and anyone else held in Guantanamo Bay- now or ever. As Fox News lies reports:

The legislation by Sens. John McCain, R-Ariz., and Joe Lieberman, I-Conn., would result in banning all civilian trials for terror suspects who have been classified as enemy combatants and forcing their cases into military commissions.

The bill lays out “comprehensive policy for the detention, interrogation and trial of suspected unprivileged 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,” according to a release from McCain’s office.

Here's the blog post linked to by my favorite blogger, Andrew Sullivan and its summary:

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.

But that's not all: several other bloggers claim that the President would actually not be given a choice in the matter. Once a prisoner is determined to be an unlawful enemy combatant, he MUST be imprisoned forever: trying to try him in court would actually become ILLEGAL.

Is that true? Well, here's what a University of Utah law professor has to say on the bill:

The legislation’s panic response can be seen not only in the due process and rights denied, but in the categories of persons it addresses. By encompassing those suspected of material support for terrorism – a federal crime indeed but never part of the law of war – the bill subjects an extraordinarily broad group of persons to indefinite detention.

The proposed legislation’s impact would be 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.

Past practice in the US and abroad demonstrates, unfortunately, that panic and the desire to respond plays a dominant role over legitimate national security interests, respect for constitutional and international law considerations and careful analysis of the threat posed. That is, the response becomes what is important; its legitimacy and justification take a back seat. While terrorism poses a threat, that threat does not justify throwing our principles out the door in panic.

Um... accurate, but not helpful.

I suppose there's no substitute for going through the text of the actual bill itself, omitting the boilerplate, and see what the bill actually does. This is easier than it sounds: the bill is extremely short as such things go and reads more or less in common English rather than contract-legalese.

So: the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010. Let's start by skipping to the end and looking at definitions, so you'll know what the bill is talking about:

(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.

Well, so far so good, right? Um, wrong. "Purposely and materially supported hostilities" is a very broad category. It could mean anyone who donates money to a charity run by a terrorist organization without knowing of the terrorist connection- as thousands of Muslims rounded up by John Ashcroft after the September 11th attacks could testify. Also, the list isn't limited to enemies of America: the phrase "or its coalition partners" requires a closer look:

(5) COALITION PARTNER.—The term ‘‘coalition partner’’, with respect to hostilities engaged in by the United States, means any State or armed force directly engaged along with the United States in such hostilities or providing direct operational support to the United States in connection with such hostilities.

So- for example- any organization levying war or terrorism on any of our allies, or giving material support to such an organization, also qualifies. Some of our allies, such as Turkey or Pakistan, could- and would- use this to include political opposition within their own countries. Since both nations are our allies, this law would create an open-ended commitment to take on all enemies of the governments of all our allies as our enemies- with no reciprocal obligations.

Of course, this bit would be Joe Lieberman's contribution. Israel is an ally (on paper), and Joe Lieberman recently went to Israel to tell the government of Benjamin Netanyahu that he and John McCain would use the Senate to ensure that Obama could not hold Israel accountable for war crimes and land theft do anything to interfere in Israel's actions. This bill would pretty much be a declaration of war against the Palestinian Authority, should Israel ever decide to farm out its own Mossad work to the CIA.

So- we have established that anyone fighting a terrorist war with the United States who isn't part of an enemy nation's army, i. e. a terrorist... OR anyone fighting a terrorist war on any ally of the United States... OR anyone providing "material support" for such persons, however you care to define that... is an "unprivileged enemy belligerent."

So, what do we do with "unprivileged enemy belligerents?" Let's go back to the top:


(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.

... wait a minute. All that stuff from, "who is suspected of engaging in hostilities," down to, "and materially supporting such hostilities..." isn't that what we just defined as "unprivileged enemy belligerent"? I suspect this redundancy is meant to expand, not contract, the number of people for whom this could apply. But onward:

(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.

In other words: the CIA gets first crack at all prisoners and can hold them indefinitely, doing whatever they want to them, before the military actually gets custody of them. Now, this bill does not actually SAY, "go ahead and torture them," but...

Anyway, the bill goes on to say that teams of interrogators shall be assembled from various law enforcement and intelligence agencies throughout the federal government. They'll pump the prisoner for intelligence while determining if he or she is, in fact, an "unprivileged enemy belligerent." These teams have pretty much free rein to do whatever they want with the prisoner. The President gets sole authority to set the rules and regulations for the conduct of interrogations.

There is one thing the interrogators definitely can't do, though:

(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.

That's right: this bill, although not explicitly stripping all rights altogether from the accused, seeks to keep those rights secret. Friends, I regard it as a very bad sign when a government tries to keep even the law secret from those subjected to it.

But keep this in your mind- this bill would strip Miranda rights from the accused. We'll come back to this later.

Anyway, the interrogation group write a report saying whether or not they think the prisoner in question is an "unlawful enemy comb-" er, I mean "unprivileged enemy belligerent." This report goes to the Secretary of Defense and the Attorney General. These two worthies then report to the President and to the intelligence committees of Congress whether or not they agree with the preliminary report. The President only gets a say in the matter if SecDef and the AG disagree- otherwise he has to accept what gets handed to him.

The bill goes on to set criteria on deciding whether or not a prisoner should be interrogated in this fashion at all and set on the road to be "unprivileged enemy belligerents."** Here they are:

(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 facili1ties within the United States or upon Unite 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.

... WHOA.

"Such other matters as the President considers appropriate?"

This is a blank check to allow the President to throw anyone, absolutely anyone at all, down the black hole of terrorism investigation.

And what happens when our prisoner is determined to be an (ugh) "unprivileged enemy belligerent"? Do we try him, find him guilty, and lock him up?

No- only one out of the three:

(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)(2).

(b) APPLICABILITY PENDING FINAL DETERMINATION OF STATUS.—While a final determination on the status of an alien high-value detainee is pending under sec8
tion 3(c)(2), the alien shall be treated as an unprivileged enemy belligerent for purposes of subsection (a).


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.

Well, no point in upholding Miranda rights if you never, ever intend the prisoner to see the inside of a courtroom. (Article III refers to the Constitution- it means any civilian court within the United States.)

That's the long and the short of it: anyone accused of being a terrorist, or a supporter of terrorism, or who meets whatever "other criteria" any future President might add, can be locked up FOREVER without legal right to challenge their imprisonment. They do not get to challenge, or even see, the evidence used to brand them an "unprivileged enemy belligerent." They do not get to explain or defend their actions. They're just held... held until the "end of hostilities," which everyone knows can never come because we're fighting a war not against a nation or even the al-Qaida organization but against a tactic.

This is unconstitutional on SO many levels. The guarantee of habeas corpus; the right to trial by jury; the right to confront one's accuser; the protection against self-incrimination; all of these things are human rights accorded to ALL people in American custody, not merely American citizens. This bill violates them all- and probably some other constitutional protections I can't think of right now.

I've heard someone posit that McCain and Lieberman intend to put this bill as a rider on the health insurance reform reconciliation bill or some other bill they know Obama won't dare veto. I haven't found any confirmation for this, and I don't know why they'd bother. Obama has already announced his plans to hold between twenty and sixty of the current Guantanamo Bay prisoners forever without trial, so that part of the bill obviously wouldn't bother him at all. And as for banning trials of any such prisoners in the future... well, all signs currently point to Obama backing down on Holder's attempt to try Khalid Sheik Mohammed in civilian courts.

At present, I can honestly see Obama signing this bill and praising it as a regrettable but necessary tool in the ongoing (and eternal) war on terrorism.

We can only hope this abomination dies in committee and never gets a chance for a vote. Considering the two names currently on the bill, though, and the high visibility it's getting in certain circles, I doubt that will be allowed to happen.

So, at some point, we may be looking at a situation where the President can order absolutely anybody to vanish into "unprivileged enemy belligerent" limbo- solely on his say-so.


If you have a congressperson or senator who gives a damn what constituents say (I don't), now would be an EXCELLENT time to put a word or ten in his or her ear.

* "privileged belligerent" = prisoner of war as per the Geneva Accords.

** However tired you might be of reading that phrase, it is as nothing compared to how sick I have become of typing it.

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