On March 4th, Senators John McCain and Joe Lieberman introduced a bill called the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010” that, if passed, would set this country on a course to become a military dictatorship.
The bill is only 12 pages long, but that is plenty of room to grant the president the power to order the arrest, interrogation, and imprisonment of anyone — including a U.S. citizen — indefinitely, on the sole suspicion that he or she is affiliated with terrorism, and on the president’s sole authority as commander in chief.
The Act begins with the following (convoluted) 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.
In other words, if at any point, anywhere in the world, a person is caught who might have done something to suggest that he or she is a terrorist or somehow supporting a terrorist organization against the U.S. or its allies, that person must be imprisoned by the military.
For how long?
As long as U.S. officials want. A subsequent section, titled “Detention Without Trial of Unprivileged Enemy Belligerents,” states that suspects “may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners.” In a press conference introducing the bill earlier this month, Sen. Joe Lieberman said, “I know that will be — that may be — a long time, but that’s the nature of this war.”
As constitutional expert Glenn Greenwald has pointed out, “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.” What happened to Padilla, a notorious perversion of justice in a country that claims to be a democratic standard-bearer, would thus go from being an exception to the rule itself.
As “war on terror”-era legislation goes, Greenwald calls the Enemy Belligerent Interrogation, Detention, and Prosecution Act “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.” This is a sobering statement, especially given the intense controversy the MCA generated at the time of its passage, in the heady weeks preceding the 2006 midterm elections. Then-Senator Obama was one of only 34 senators who voted against it, calling it “sloppy,” and expressing his wish that “cooler heads … prevail after the silly season of politics is over.”
Now, however, as president, Obama has helped pave the way for such radical legislative efforts as the one introduced by McCain and Lieberman, by embracing — and re-branding — the military commissions he once opposed.
“Belligerents” are the new “Combatants”
Three years after Obama eloquently opposed the Military Commissions Act, the now-president signed a Military Commissions Act of his own, as part of the 2010 Defense Authorization Bill. The law, which sought to overhaul the discredited Bush-era military commissions for “alien enemy combatants,” introduced what is apparently turning out to be an important new term to the counterterror lexicon: Unprivileged Enemy Belligerent, defined as “an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.”
Months before, in March of 2009, the Obama administration announced that it was phasing out the term “alien enemy combatant,” even as it held on to the authority to hold terror suspects indefinitely. “Unprivileged Enemy Belligerent,” then, was its replacement.
As Human Rights Watch attorney Joanne Mariner wrote last fall, “this is a cosmetic change, not a real improvement, which mirrors the administration’s decision to drop the enemy combatant formula in habeas litigation at Guantanamo Bay.”