A Cheneyesque banana-republic law passed another hurdle in the Senate on Tuesday. It would mandate that the US military detain terrorism suspects, including US citizens, even on US soil, and hold them without trial, possibly for life, in military detention facilities. It sounds like a particularly dark part of a futuristic novel. But it’s actually part of the National Defense Authorization Act.
Under the so-called detainee provisions of the law, terrorism suspects—defined as any American or foreign national whom the military deems so—get only a military hearing. If during that hearing, the military accuses the person of terrorism, he or she could be locked up for life and exposed to endless interrogations. There are no legal safeguards. The suspects cannot bring in a lawyer and cannot defend themselves properly. There are no formal charges, no due process of law, and no requirement to prove anything. Just suspicion. Or someone’s wish. The ultimate nightmare: if you, yes you, fall out of favor with the wrong person, or are otherwise inconvenient, you could be accused of terrorism. After a perfunctory military hearing, you could be locked up for life.
“They should not be read their Miranda Rights. They should not be given a lawyer,” said Sen. Lindsey Graham (R-SC), a big proponent of the detainee provisions, according to the Huffington Post.
Only chance: if the Secretary of Defense is your best buddy, he or she can bail you out by issuing a waver. If not, you’re done.
Former Vice President Dick Cheney has his fingerprints all over this bill: he attended the Republicans’ weekly caucus lunch during which attendees were brought into line for the all-important vote yesterday on an amendment that would have stripped the detainee provisions from the bill. His efforts were successful. Only two Republicans broke rank and voted for the amendment, which was sponsored by Sen. Mark Udall, a Colorado Democrat. The amendment failed by 60-38 votes. Final vote on the Defense Authorization Act may come on Thursday.
Opposition to the detainee provisions came from all sides.
“I’m very, very, concerned about having US citizens sent to Guantanamo Bay for indefinite detention,” said über-conservative Rand Paul, Republican Senator from Kentucky, according to the Huffington Post. “It’s not enough just to be alleged to be a terrorist. That’s part of what due process is—deciding, are you a terrorist? I think it’s important that we not allow US citizens to be taken.”
“Congress is essentially authorizing the indefinite imprisonment of American citizens, without charge,” said Sen. Dianne Feinstein, California Democrat and Chairman of the Intelligence Committee. “The US government should not have the ability to lock away its citizens for years and perhaps decades without charging them,” she said according to the San Francisco Chronicle.
“These provisions could limit the effectiveness of our intelligence and law enforcement professionals,” said James Clapper, Director of National Intelligence, in his letter to Feinstein. He fiercely opposed the measure for numerous reasons, among them: “The provision that mandates military custody for a certain class of terrorism suspects could restrict the ability of our nation’s intelligence professionals to acquire valuable intelligence and even prevent future attacks.”
Robert Mueller III, Director of the FBI, also opposed the provisions in his letter to Carl Levin, Chairman of the Armed Services Committee, asserting that the law could actually prevent the FBI from investigating terrorism suspects.
The White House fired a broadside against the provisions and issued a veto threat. Here are two excerpts from its statement:
Some of these provisions disrupt the Executive branch’s ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government’s ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military’s operations and detention practices.
This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.
An equivalent House bill on defense spending passed earlier this year. It did not contain any of the detainee provisions. However, when the Senate and House bills get merged, the detainee provisions could well become part of the final version. Let’s just hope that there will be enough opposition on both sides to support a presidential veto. If not, some of America’s most fundamental principles will be trampled.