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McCain and Lieberman's Nightmarish Detention Bill

March 13, 2010 - by Donny Shaw

One of Congress’s most notoriously hawkish duos, Sen. John McCain [R, AZ] and Sen. Joseph Lieberman [I, CT], recently introduced legislation in response to President Obama’s decision to try Umar Farouk Abdulmutallab, the Christmas Day airplane bomber, in a criminal court. Their proposal, which they are calling the Enemy Belligerent Interrogation, Detention and Prosecution Act, would empower the U.S. military to arrest anyone, U.S. citizen or otherwise, who is suspected of terrorist associations and detain them indefinitely, without right to a trial.

Here’s my analysis with links to specific sections of the actual bill text and a few excerpts of key sections. I invite your fact-checking.

Terrorist suspects would be given over to military custody for interrogation:

(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.

People would have to be given over to the military within a “reasonable time” (undefined) of their initial arrest. Miranda rights would be specifically waived, denying the detainee a right to a lawyer and a right to refuse to cooperate:

(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.

Once in custody, suspects would be interrogated by a “high-value detainee interrogation group” to determine whether the person is, in fact, “an unprivileged enemy belligerent” according to any of thecriteria below:

(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.

If there is any disagreement about a person’s unprivileged enemy belligerent according to the above criteria, the final determination goes to the President. Once determined to be an unprivileged enemy belligerent, a person, regardless of citizenship status, can be detained indefinitely, without trial, until terrorist threats against the U.S are determined to be over:

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.

So far, the bill has been referred to the Senate Judiciary Committee. It currently has nine co-sponsors, including the newly-elected Sen. Scott Brown [R, MA]. We’ll update on this blog if it gets a hearing or a mark-up in the committee.

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Comments

  • NoWayz 03/13/2010 9:19am

    After just a quick read it seems a bit too subjective for such a broad extension of the long arm of the law. Those with authority are human and therefore far from perfect. It’s somewhat concerning that the term evidence is not mentioned anywhere in the text of the bill. Whereas use of the term “suspected” is used throughout. I think detainment of U.S. citizens or otherwise without presenting any form of actual evidence and without representation for an indefinite length of time undermines our belief in liberty and “Justice” for all. Incarcerating someone indefinitly on the base of subspicion alone sounds more like a policy you would see in Iran not in America. I’m not against detaining and even interrogating those that are suspected of doing us harm. It’s the indefinite period and without representation that strays from some core principles on which this country was founded.
    But then again what do I know…..I’m just a private citizen lol.

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    jolenealbert63e 01/09/2012 2:14pm

    I totally agree with you. Thank you for a very informative comment. We must maintain the core principles on which this country was founded.
    Teich Shop

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    joebiggs 03/23/2012 12:47pm

    Hey man, great post with some good insights on how the government. I’m a solar panels expert but found this quite interesting.

  • zardoz 03/14/2010 4:43pm

    I think we have 2 Senators who are a threat to our civil liberties and should be the first to ‘dry-run’ belligerent interrogation, detention and prosecution.

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    acsanet 09/19/2010 4:27pm

    Read this website AND look at the details of hate, mass murder, and the common ‘Clerical Ruling’ that “it’s every muslim’s duty to kill every american wherever they are found and pilfer their money wherever possible” found on the Terrorist Websites at our compilation list of 420 Terrorist Websites, and you may just change you mind a tad:

    http://www.terroristwebsites.info

    There needs to be a very significant change made in that such detention rules be understood only to those CONFIRMED to be Terrorist Combatants, not just 1st Amendment rights activists. Such would require actual engaging in terrorist bombings, and ambushes, and murders….

  • dankennedy73 03/14/2010 5:10pm

    What happened to the Constitution that guaurantees the right to a speedy trial? I don’t ever remember it saying, “Unless we just feel like locking you up to shut you up.” That’s basically what this is. A way to shut you up when your words threaten the new way Republicans want things run. Last time I checked, this was still the United States of America, not 1940’s Nazi Germany, yet every day it seems to be getting closer to that.

  • ThinkB4Shoot 03/14/2010 8:41pm

    At what point did this country become a military police state? As our very concerned founders understood, they severly limited the authority of the military within the United States. These public servants know the restrictions but this lets them stand up and do more flag waving chest thumping. And, more to the point, anyone that is opposed can be branded as unpatriotic and soft on terrorism. After 23+ years working with/for the military I have seen the damage that can be done by putting them in charge of something they are NOT and should not be responsible. Of course, the real idea is that by letting the military take charge of the ‘suspect’, they can be shipped off to a ‘friendly’ country that has fewer protections on how to deal with suspects. Let the FBI do its job.

  • ThinkB4Shoot 03/14/2010 8:44pm

    At what point did this country become a military police state? As our very concerned founders understood, they severly limited the authority of the military within the United States. These public servants know the restrictions but this lets them stand up and do more flag waving chest thumping. And, more to the point, anyone that is opposed can be branded as unpatriotic and soft on terrorism. After 23+ years working with/for the military I have seen the damage that can be done by putting them in charge of something they are NOT and should not be responsible. Of course, the real idea is that by letting the military take charge of the ‘suspect’, they can be shipped off to a ‘friendly’ country that has fewer protections on how to deal with suspects. Let the FBI do its job.

  • sshs20 03/15/2010 3:21pm

    This doesn’t sound good.

  • MinorCitizen 03/17/2010 1:09am

    May sound “reasonable” now, but the language is vague enough that it could be directed towards citizens for any offense.

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    MinorCitizen 03/17/2010 1:12am

    Remember these:

    Amendment 6
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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    MinorCitizen 03/17/2010 1:12am

    Amendment 4
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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    MinorCitizen 03/17/2010 1:13am

    Amendment 8
    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    ###

    These ain’t guidelines, folks. I’m generally pretty moderate, but these bills tend to strike fear into the hearts of people. That fear becomes a tool by which the government rules.

    “When the people fear their government, there is tyranny; when the government fears the people, there is liberty.” ~ Thomas Jefferson

  • wmholt 03/20/2010 2:59pm

    If that should ever pass, the power would be abused just like the “National Security Letters” which gave the FBI the ability to obtain documents related to national security without a court order. The vast majority of cases had nothing to do with terrorism or national security as originally intended.

    The vast majority of U.S. citizens detained without trial based on the bill also would not have anything to do with terrorism.

  • timrich001 10/05/2010 11:58pm

    What happened to the Constitution that guaurantees the right to a speedy trial? I don’t ever remember it saying, "Unless we just feel like locking you up to shut you up.At what point did this country become a military police state? As our very concerned founders understood, they severly limited the authority of the military within the United States. These public servants know the restrictions but this lets them stand up and do more flag waving chest thumping. And, more to the point, anyone that is opposed can be branded as unpatriotic and soft on terrorism. After 23 + years working with for the military I have seen the damage that can be done by putting them in charge of something they are NOT and should not be responsible. Of course, the real idea is that by letting the military take charge of the ‘suspect’, they can be shipped off to a ‘friendly’ country that has fewer protections on how to deal with suspects. Let the FBI do its job.

  • thetimes 05/18/2012 7:01am

    I have perfect credit, but became totally disabled with Myeloma, SSDI approved me in 6 weeks! I have enough in savings to make my payments only for the next couple months, but there are NO OPTIONS for those of us that just want to refi but don’t have enough equity. So I’m being punished for paying my debt to Wells Fargo with no option to SAVE it preemptively. Collectively I’ve spent 4 months with them only to find out that I have to first ruin my credit and not pay before I’m able to get a better monthly payment. Does anyone know of an agency like kredyt hipoteczny domhipotek that can protect a senior disabled woman who is alone in this?? I have nobody. PLEASE, any help is appreciated for those of us that wish to maintain dignity.

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  • Johndf 06/05/2012 8:04pm

    I absolutely agree with you.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

    That’s what i think of it.

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