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.
From the legislation itself:
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.
And the people eligible for such treatment:
(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 passage of this bill will mean the president can lock up anyone he wants for any length of time for any reason he deems sufficient. It does not matter if that person is a US citizen on US soil, or how many decades there are considered to be "hostilities," or even whether or not the person is in any way involved with terrorism.
For all of you consoling yourselves by figuring this will never survive judicial review, remember that only those people with "standing" can challenge a law in court. What this means is the ACLU can't just petition the Supremes to review any law they see fit; you can only challenge a law you have been personally punished by or will be imminently punished by. In this case, you have to have already been jailed by the military under this law to take the president to court.
Except you can't, of course, because this law explicitly denies you the right to a trial or a lawyer.
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