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Enemy Belligerent Act of 2010

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In the years since 9/11, the US has built a mosaic of national security powers that undermine its claim to be the “land of the free.” According to this useful summary by Jonathan Turley, these include: Assassination of its own citizens; warrantless searches; use of secret evidence and secret courts; the rise of an unaccountable surveillance state (more on that by Glenn Greenwald). This is in addition to hosting the world’s largest prison population (both in relative and absolute numbers), which includes what for all intents and purposes can be considered a transnational Gulag as part of its efforts in the endless-by-definition “war on terror.” At least for many Muslims and minorities, the US has already not been a liberal democracy for a long time.

But at what point can a country be considered to have definitively retreated from liberal democracy? After all, though much of the above are common to authoritarian states, they are sometimes present in liberal democracies too; and besides, the US does have some mitigating features (e.g. strong freedom of speech provisions that are relatively free from PC and libel laws, unlike in the UK and much of Europe).

The argument can be made that the US ceased being a liberal democracy on December 31, 2011 – the day the NDAA 2012 was signed into law by Obama. This legalizes the indefinite detention of US citizens by the military on the mere suspicion that the suspect is “associated with” terrorism or committed “belligerent acts” against the US or its allies. Bearing in mind the incredibly broad and flexible definition of what “terrorism” actually means, this could potentially encompass any number of anti-elite groups: Anonymous, Wikileaks, Occupy Wall Street, the Tea Party, etc.

AK Edit: Regrettably, all the old polls have gone.

Even if we are to (very generously) assume that this law will only be conscientiously wielded against genuine terrorists, there is room for doubt that indefinite detention is compatible with liberal democracy. After all, no other countries commonly considered to be liberal democracies – so far as I’m aware – have indefinite detention powers as sweeping as those contained in the NDAA. Even many countries considered to be illiberal democracies (or outright dictatorships), such as Russia, don’t have anything like it. And, of course, this assumption of good intentions is pollyannaish, given that the government has given no cause for trust whatsoever in this matter (what with the FBI setting up terrorist plots, the numerous cases of wrongful detention at Guantanamo, etc).

Of course, this is not to say that in a few years the US will come to resemble a tinpot dictatorship. Some historical perspective is necessary. Indefinite detention and imprisonment without trial aren’t unprecedented: See the 1950 McCarran Act, introduced at the height of the red scare, didn’t exactly lead to authoritarianism (though the US at the time was a great deal more illiberal that many care to admit). Furthermore, it’s also important to note that the NDAA legislation merely codifies powers that the executive has both claimed (through the AUMF) and exercised for the past decade, and besides it is only building on past efforts such as the flopped Enemy Belligerent Act of 2010; so one can argue that the change is not so abrupt as to constitute a crossing-the-Rubicon type of event.

Perhaps. Then again, there are caveats to that viewpoint too. The 1950′s-60′s were a period of fast growth and prosperity, so there was no real base for authoritarian regression. The prospects for the next decade don’t look anywhere near as good; in fact, they are downright dismal, and may well see some combination of high inflation and default. And democracy tends to wane in days of depression. Faced with challenges from the far left and the far right, the elites may find it necessary to consolidate a profoundly different social order, a post-constitutional Third Republic of sorts: One that is fiscally and socially conservative, and more authoritarian than the current one. To do this they will need to enlist the support of the billionaires; as far as this is concerned, the Wall Street bailouts, Citizens United and corporate citizenship, SOPA/PIPA, etc. may well be only harbingers of what is yet to come.

But this is all speculation. In the here and now, the fact of the matter is that the US now has national security laws on its books far more draconian than those of any other country considered to be a liberal democracy; indeed, I doubt you would find anything similar even in countries whose democracies are often criticized, such as Russia, Venezuela, or now Hungary. These laws apply to “terrorists”, a grouping every bit as ephemeral and ill-defined as “counter-revolutionaries” under Article 58 of the Stalinist lawcode. I have no choice but to lower the US from a “semi-liberal democracy” to an “illiberal democracy” in this year’s edition of the Karlin Freedom Index.

(Republished from Sublime Oblivion by permission of author or representative)
 
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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.

(Republished from Sublime Oblivion by permission of author or representative)
 
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Anatoly Karlin
About Anatoly Karlin

I am a blogger, thinker, and businessman in the SF Bay Area. I’m originally from Russia, spent many years in Britain, and studied at U.C. Berkeley.

One of my tenets is that ideologies tend to suck. As such, I hesitate about attaching labels to myself. That said, if it’s really necessary, I suppose “liberal-conservative neoreactionary” would be close enough.

Though I consider myself part of the Orthodox Church, my philosophy and spiritual views are more influenced by digital physics, Gnosticism, and Russian cosmism than anything specifically Judeo-Christian.