Congress is now considering legislative language to mandate indefinite military detentions of US citizens suspected of present or past associations with alleged terrorist groups, with or without evidence to prove it. More on that below.
The 2006 Military Commissions Act authorized torture and sweeping unconstitutional powers to detain, interrogate, and prosecute alleged suspects and collaborators (including US citizens), hold them (without evidence) indefinitely in military prisons, and deny them habeas and other constitutional protections.
Section 1031 of the FY 2010 Defense Authorization Act contained the 2009 Military Commissions Act (MCA). The phrase "unprivileged enemy belligerent" replaced "unlawful enemy combatant."
Language changed but not intent or lawlessness. Obama embraces the same Bush agenda, including keeping Guantanamo open after promising to close it, allowing torture there and abroad, and treating US citizens as lawlessly as foreign nationals.
MCA grants sweeping police state powers, including that "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause for action whatsoever....relating to the prosecution, trial, or judgment of a military commission (including) challenges to the lawfulness of (its) procedures...."
MCA scraped habeas protection (dating back to the 1215 Magna Carta) for domestic and foreign state enemies, citizens and non-citizens alike.
It says "Any person is punishable... who....aids, abets, counsels, commands, or procures," and in so doing helps a foreign enemy, provide "material support" to alleged terrorist groups, engages in spying, or commits other offenses previously handled in civil courts. No evidence is needed. Those charged are guilty by accusation.
Other key provisions include:
• legalizing torture against anyone, letting the president decide what procedures can be used on his own authority;
• denying detainees international law protection;
• letting the executive interpret or ignore international and US law;
• letting the president convene "military commissions" at his discretion to try anyone he designates an "unprivileged enemy belligerent," detaining them indefinitely in secret;
• denying speedy trials or none at all;
• letting torture coerced confessions be used as evidence in trial proceedings, despite US and international law prohibiting cruel and inhuman treatment at all times, under all conditions, with no allowed exceptions;
• letting hearsay and secret evidence be used; and
• denying due process and judicial fairness overall.
On May 21, 2009, Obama addressed national security and civil liberties issues, including Guantanamo detainees, military commissions, and torture.
Saying his "single most important responsibility as president is to keep the American people safe," he bogusly claimed Al Qaeda "is actively planning to attack us again (and) this threat will be with us for a long time...."
He added that uncharged detainees "who cannot be prosecuted yet who pose a clear danger to the American people" (with or without evidence to prove it) will be held indefinitely without trial.
Obama's March 7, 2011 Executive Order authorized military commission trials for Guantanamo detainees with revamped procedures, despite pledging to close the prison.
Congress Considers New Freedom-Stripping Legislation
On October 17, 2011, the ACLU addressed Section 1031 of S. 1253: National Defense Authorization Act for Fiscal Year 2012, saying it "significantly curtails existing protections against indefinite detention without charge or trial."
It goes beyond previous laws by hardening them extrajudicially.
The last time Congress authorized indefinite detentions for uncharged US citizens without trial was in 1950. The Emergency Detention Act provision of the Internal Security Act authorized incarceration for those considered likely to commit espionage or sabotage.
It was never used, then repealed by the 1971 Non-Detenton Act, stating:
"No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
At issue was never again subjecting US citizens to lawless internment the way Japanese Americans were treated in 1942, forcing loyal citizens into War Relocation Camps.
Section 1031 of S. 1253 "would be the first exception to the statute's protections." Subsection (d) provides US citizens "little or no" indefinite detention protections domestically or abroad.
The provision refers solely to "citizens or lawful resident aliens of the United States." However, the Constitution fully protects them.
"Section 1031 could cause cleared naturalized United States citizens and cleared immigrants to be sent to a foreign country, even in the absence of any wrongdoing."
Subsection (c) provides four options:
• indefinite detention without charge;
• military commission trials;
• trial by another tribunal; or
• transfer "to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity."
Even someone erroneously arrested and cleared of wrongdoing could be held indefinitely without charge, given non-civil trials, or sent abroad.
Post-9/11, Arab and/or Muslim Americans lawlessly experienced "roundups" because of their faith and ethnicity. Latino immigrants face similar abuse.
Section 1031 would authorize similar practices. Military forces could be used. US citizens would be terrorized, detained and held indefinitely without charge or trial, based solely on suspicions, baseless allegations or none at all.
No reasonable proof is required, just suspicions that those detained pose threats. Under subsection (b)(1), indefinite detentions can follow mere membership or support for suspect organizations.
US citizens at home and abroad could be detained. Presidents would have unchecked authority to arrest, interrogate and indefinitely detain law-abiding citizens if accused of potentially posing a threat.
Constitutional, statute and international law won't apply. Martial law will replace it. As a result, anyone for any reason or none at all could be indefinitely detained for life without charges or trial.
Section 1031 exceeds the laws of war. Its ambiguities and excesses would institute extrajudicial national security state terror. No one anywhere would be safe.
It calls "covered persons" anyone captured or detained, even unconnected to hostilities. In other words, the executive could order anyone indefinitely incarcerated on his say alone. The provision would exceed current presidential authority.
Like the companion House bill, detention would be authorized based on alleged prior associations with suspect groups. US military personnel anywhere in the world would be able to seize US citizens and others.
Anyone could be incarcerated for life with no possibility for redress. Section 1032 requires suspects held in military custody, outside constitutionally mandated civil protections.
Due process and judicial review won't apply. Police state lawlessness could terrorize anyone suspected of terrorist group ties without proof.
In other words, presidents could order anyone imprisoned for life without cause. Despotic regimes operate this way. So would America more extrajudicially than ever.
Tyranny will replace constitutional law. Middle of the night arrests could become common. No one anywhere would be safe, including unjustly accused citizens.
The ACLU calls indefinite detention without judicial review "an appalling abuse of power. We know that our government has already mistakenly detained hundreds of people on suspicion of terrorism over the past 10 years."
"Many have languished in custody for years with no way to even assert their innocence or address the evidence against them. All people are entitled to due process."
Imagine new likely power abuses, including claiming OWS protesters threaten America.
Imagine human and civil rights workers, as well as anti-war activists targeted.
Imagine anyone challenging wealth and power interests at risk.
Imagine an America more than ever not fit to live in, and nowhere to hide.
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org.
Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.