Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
A bill sponsored by Sen. John McCain and Sen. Joe Lieberman -- a bill that could well pass in the spineless, simpering Congress we have -- would encode into law President Bush's assertion that he could arrest and imprison even American citizens in a military prison indefinitely without charges or any kind of trial. Read the bill here (PDF). Then read Marc Armbinder's comments about it.
Why is the national security community treating the "Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010," introduced by Sens. John McCain and Joseph Lieberman on Thursday as a standard proposal, as a simple response to the administration's choices in the aftermath of the Christmas Day bombing attempt? A close reading of the bill suggests it would allow the U.S. military to detain U.S. citizens without trial indefinitely in the U.S. based on suspected activity.
And he's right. Here's the key fact:
According to the summary, the bill sets out a comprehensive policy for the detention, interrogation and trial of suspected enemy belligerents who are believed to have engaged in hostilities against the United States by requiring these individuals to be held in military custody, interrogated for their intelligence value and not provided with a Miranda warning.(There is no distinction between U.S. persons--visa holders or citizens--and non-U.S. persons.)
Remember, the Supreme Court ruled in Boumediene that even foreign nationals cannot be held forever without some sort of hearing with adequate due process to determine whether the detention is justified. It ruled even more clearly in the case of Jose Padilla that the president certainly does not have the authority to suspend habeas corpus for individual citizens and hold them indefinitely.
It's difficult to even imagine something more blatantly unconstitutional. The 4th, 5th, 6th and 7th amendments all set out the forms of due process required of anyone detained by the government, especially citizens.
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And as I was just telling my Am Gov't students an hour ago, Congress can't pass a law to overturn a Supreme Court ruling. Boumediene preemptively controls this law. I wouldn't be shocked if McCain and Lieberman know that full well, and are betting on the Supreme Court to provide constitutional cover for them so they can get credit for standing tough against terrorism.
Posted by: James Hanley | April 1, 2010 12:20 PM
Oh, they can pass any kind of law they want. Good luck passing constitutional muster, though...
The scary thing is that I don't think this would be a 9-0 decision at SCOTUS, despite the law's in-your-face anti-constitutionalism. Can you really imagine Scalia and Alito voting in favor of habeas corpus for "terrorists"?
Posted by: James Sweet | April 1, 2010 12:31 PM
For more information, and a fuller list of cosponsors (which has 8 additional Republicans), see here: http://www.govtrack.us/congress/bill.xpd?bill=s111-3081
Let's all hope for the sake of this country that it dies in committee.
Posted by: Mystyk | April 1, 2010 12:37 PM
has that ever actually stopped them, though?
Posted by: Nomen Nescio | April 1, 2010 12:39 PM
OK, James Sweet and Nomen Nescio win. ;) They're right, of course.
Posted by: James Hanley | April 1, 2010 12:42 PM
I wonder how the Tea Party would theoretically react to this? I say theoretically because they should be very much against this bill on their platform's principle. But I would be surprised if they actually adhered to it in this case.
Posted by: CW | April 1, 2010 12:43 PM
Time for a few calls to my Congresscritters...
Posted by: WScott | April 1, 2010 12:44 PM
Let me see if I understand this right: under the provisions of this bill, President Obama could simply declare the nine Christian militiamen recently arrested to be terrorist enemy combatants and whisk them off to Gitmo or some other military detention facility without charges, and hold them there as long as he or any subsequent president felt like holding them.
Hmmmmm.....
Posted by: flatlander100 | April 1, 2010 12:54 PM
Talk about contempt for the Constitution and due process.
Posted by: Goldbrick4 | April 1, 2010 12:58 PM
Yeah, it'll fall the second someone whose rights have been violated under this law gets access to the courts...
Another great reason to do away with the Standing doctrine with respect to Constitutional challenges.
Posted by: DaveL | April 1, 2010 1:05 PM
Let me help, then: civil forfeiture. Which the USSC has repeatedly upheld. I expect the current Court especially to do the same with this Act should the time ever come.
Of course, any lawyer attempting to represent a plaintiff in such a case would come under suspicion of aiding and abetting. Which might make them disappear, too.
Posted by: D. C. Sessions | April 1, 2010 1:38 PM
It is a dangerous situation when the government has the ability to 1) designate whom they will to be 'terrorists' and 2) is allowed to use such a designation as a justification for various unconstitutional methods to be used to keep and interrogate them.
I think the idea that any lawyer attempting to represent such a plaintiff would come under aiding and abetting is a BIT much though. I doubt seriously that would happen.
Posted by: John | April 1, 2010 2:05 PM
flatlander @8: Sure, it's tempting to think that way--but the first rule of power is that expanding its scope will come back to bite you.
Posted by: Freemage | April 1, 2010 2:07 PM
@2 "Can you really imagine Scalia and Alito voting in favor of habeas corpus for "terrorists"?"
Depends. Are the terrorists incorporated?
Posted by: MTiffany | April 1, 2010 2:15 PM
OK, I'm overruling James Hanley and declaring that MTiffany (@14) wins the thread.
Posted by: Mystyk | April 1, 2010 3:28 PM
John #12, the DoJ position is that anyone advising "terrorist organizations" on how to achieve their goals by non-terrorist means are providing them with "material support".
It is even self-contradictory. It cites the Geneva Convention, but the Geneva Convention specifically states that detainees are to be considered to have the rights of POWs until after a competent tribunal has ruled otherwise, and a “competent tribunal” can only operate while includes all the rights that they don't want to grant, including right to legal council, right to call witnesses, and an impartial judge and jury. The procedure they mandate does not constitute a competent tribunal.
This could be applied to the teabaggers who “sent a message” of violence to intimidate members of Congress by breaking glass (a violation of law) in Congressional offices (critical civilian infrastructure). It could also be applied to those who have provided “material support” to the teabaggers, Fox News, Glen Beck, Sarah Palin, and all the rest of the teabaggers. Certainly those who have advocated seceding from the US, or staging a coop against Obama are clearly covered.
Posted by: daedalus2u | April 1, 2010 3:34 PM
It wasn't that long ago that Glenn Beck went on national television babbling about his delusion that President Obama was plotting to murder him.
If passed, this law would allow the President to do exactly that, to arrest any American citizen without cause or trial, keep them imprisoned without end, even kill them without anyone noticing, without even having to make a pretense of due process. And it was McCain's idea! Nothing at all to do with the Obama administration, BUSH was the last President who asked for the power to imprison and torture Americans without the slightest oversight.
Of course, since this law was proposed by a Republican, there is no chance whatsoever that Beck or any of his fellow right-wing nutjobs will object in any way.
Posted by: phantomreader42 | April 1, 2010 3:34 PM
daedalus2u, is that "staging a coup" or "staging a co-op" against the President?
Posted by: Scott Hanley | April 1, 2010 3:41 PM
Gotta fill up those camps that FEMA is supposed to have built.
More likely, having nothing to run on "but fear itself," the Republicans are again trying to create a situation where Democrats can either eviscerate the Constitution or be accused of being soft on terrorists.
I have to send an e-mail to my Congresscritters and then take a shower.
Posted by: NJ Osprey | April 1, 2010 4:19 PM
Yes Scott, co-ops are extremely socialistic, communistic even.
Posted by: daedalus2u | April 1, 2010 4:44 PM
Mystyk @15,
I only meant Sweet and Nescio won their point against me. I firmly agree that MTiffany won this thread, hands down.
Posted by: James Hanley | April 1, 2010 5:54 PM
I think a closer comparison might be to Ex Partie Milligan after the civil war, when a guy who was advocating that Indiana change sides, was tried for treason, by a military commission but the supreme court said that as long as the regular courts were open they had to be used. The civil war was by far a much much greater crisis to the Us than the terror war. The terror war is behind the Civil War, the Revolution, the war of 1812, and World War II, and possibly World War I in the level of threat. The US survived these, but we forget this.
Posted by: Lyle | April 1, 2010 5:59 PM
Mr. MaGoo and Liberman are nothing more than idiots at the least. These two need to go, they are just wasting money by "playing" like children in Congress.
Posted by: Allen S. | April 1, 2010 6:51 PM
Mr. MaGoo and Liberman are nothing more than idiots at the least. These two need to go, they are just wasting money by "playing" like children in Congress.
Posted by: Allen S. | April 1, 2010 6:52 PM
Holy shit. Joseph S. Liebermann and Adolf McCain. I wonder if Adolf McCain cares to run for Tyrant for Life in the next federal election - along with Eva McPalin? It looks like McCain was a very devout student of Maoism and Stalinism as a "prisoner of war".
Posted by: MadScientist | April 1, 2010 6:58 PM
@James Sweet: Congress can even pass nothing but unconstitutional laws. Our system requires that someone actually challenge the constitutionality of a law - without a successful challenge, it remains law. On top of that it is not the duty of the judicial branch to instigate such challenges, so the Supreme Court does jack shit until someone files the appropriate paperwork. Historically a number of people within the system have started such proceedings - but they are by far the exception rather than the rule.
Posted by: MadScientist | April 1, 2010 7:04 PM
McCain & Leiberman have clearly become a threat to democracy and maybe even paranoid to the point of madness if they think this is a good bill or even to use it as a political football. They (and anyone supporting this bill) need to be booted out of office today; don't even wait for Nov. in McCain's case.
any State or armed force directly engaged along with the United States in such hostilities ... or direct operational support
This phrase, in my mind, would enable the government to hold people indefinitely who "materially" oppose the CORPORATIONS (esp. the armed ones like "Xe") as well, since they are "directly engaged" with or supporting ours in Iraq and Afghanistan ... maybe even criminalizing such things as stateside lawsuits or protests the company deems an interference. Or worse...
Some will argue "But it doesn't mean that!" and won't be used that way, and that might be true for a while ... but nobody ever expected DOJ lawyers to actually justify TORTURE as legal either, so the precedent for interpreting the law in its darkest light has been set.
during interrogation ... shall not be informed of any rights that the individual may or may not have to counsel or to remain silent
This doesn't actually say they do not HAVE those rights, just that they can't be INFORMED of them. But, as we know, if you don't know you have a right, you might as well not have it, and interrogations can be dragged on virtually forever.
Posted by: gus | April 1, 2010 8:30 PM
I move that forever after that smirking little oilslick Lieberman be referred to as "Comrade Gletkin".
Posted by: Ktesibios | April 1, 2010 10:17 PM
Just curious... would it be possible for Obama to declare McCain and Lieberman "suspected enemy belligerents" and lock them away?
Posted by: pough | April 2, 2010 12:18 AM
pough "Just curious... would it be possible for Obama to declare McCain and Lieberman "suspected enemy belligerents" and lock them away?"
In the spirit of bi-partisanship, Obama would have to volunteer to send a pair of Democrats (excluding Lieberman, whose just filling a Dem seat until the GOP makes him a better offer) away as well. Then, during negotiations, Obama would drop McCain and Lieberman from their proposed indefinite disappearance.
And that would be considered a victory.
God help us if he lost.
Posted by: Modusoperandi | April 2, 2010 1:06 AM
This bill was introduced by John Mc Cain? Well, it seems he would have been a pretty brilliant president, a true hero of democracy ! Don't you regret not having elected him ?
Posted by: Christophe Thill | April 2, 2010 7:55 AM
Maybe McCain was subverted years ago as a POW, and conditioned to act against the US - it just took him aging to cause him to lose his grip and become an enemy agent. Lieberman is just unprincipled and vindictive, and sees this as a means to get revenge. Can they be the first test cases of their proposed law?
Posted by: Badger3k | April 2, 2010 9:01 PM
pough @ 29
It would probably possible but the only thing that O'Same would do is sign the bill. He wouldn't do that to his friends.
Posted by: teammarty | April 3, 2010 1:12 PM
Are You Scheduled For Government Interrogation If Senate bill 3081 Is Passed?
On March 4, 2010, Sen. John McCain introduced S.3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”
Sen. McCain’s S.3081 would eliminate several Constitutional protections allowing Government to arbitrarily pick up Americans on mere suspicion—with no probable cause. Your political opinions and statements made against U.S. Government could be used by Authorities to deem you a “hostile” “Enemy Belligerent” to cause your arrest and indefinite detention. S.3081 is so broadly written innocent anti-war protesters and Tea Party Groups might be arrested and detained just for attending demonstrations.
Considering how often Sarah Palin defends Free Speech, one can’t help wonder why Palin is helping McCain’s reelection to the U.S. Senate after he introduced possibly the most anti-Free Speech Bill in Modern U.S. History. Perhaps Palin or her Tea Party supporters haven’t considered McCain’s legislation might be used by a corrupt government administration to crush them. Tea Parties might question Palin whether she supports Sen. McCain’s bill the “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.” (S.3081)
Under S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government will have the power to detain and interrogate any individual without probable cause. Government need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States or its coalition partners. How could one prove to Government they did not purposely do something? “Materially Supporting Hostilities” against the United States could include any person or group that spoke out or demonstrated disapproval against an agency of U.S. Government. It is foreseeable many Americans might go underground to Resist Government Tyranny. Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)
At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will permit government to use “mere suspicion” to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney.
S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against or an entity of U.S. Government or its coalition partners might be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.”
How might Americans respond should Government use this bill to take away their loved ones, family members and friends on mere suspicion? It is foreseeable McCain’s bill will drive lawful political activists underground, perhaps creating the domestic terrorists McCain said we needed to be protected from.
McCain’s bill mentions “non-violent acts" supporting terrorism in the U.S. and or emanating from America against a Coalition Partner. Non-violent terrorist acts" are covered in the Patriot Act to prosecute Persons that support “coercion to influence a government or intimidation to affect a civilian population.” However, U.S. activists and individuals under S.3081 would be much more vulnerable to prosecution, if (charged with suspicion) of “intentionally providing support to an Act of Terrorism”, for example American activists can’t control what other activists might do illegally—they network with domestically and overseas. Under the Patriot Act, law enforcement generally needs probable cause to detain or prosecute someone. But under S.3081, law enforcement and the military can too easily use (hearsay or informants) to allege “suspicious activity” to detain an individual. It is problematic under S.3081 that detained individuals in the U.S. not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.
Notably, McCain’s S.3081 mandates (merging) Federal, State and Local Police and subsequently the U.S. Military to detain and hold Individuals in the U.S., even without probable cause. Interestingly a Rand Report prepared for the Army, recently made public, appears to suggest that U.S. Government develop a Local, State and Federal U.S. "National Police Stabilization Force merging State law enforcement with the Feds. What could happen to State Rights and what Laws and Jurisdiction would be used to prosecute state Citizens arrested by a National Police Stabilization Force? A National Police Force could potentially be sent by the President into any State with the approval of its governor, against the wishes of its Citizens? To clarify the Rand Corporation report visit:
http://www.wnd.com/index.php?fa=PAGE.view&pageId=122533
Historically it is foreseeable under S.3081 that "erroneous informant information" could be used to detain innocent Individuals. Other countries have used lying informants to imprison; even execute political opposition.
Under S.3081 government may use an individual’s phone call and email information to allege without probable cause “suspicious or hostile activity against a U.S. civilian population or the United States to detain Americans.”
(Make Your Own Determination If The Analysis Herein Is Correct) See McCain’s 12-page Senate bill S.3081 at:
assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf
FYI: below is enclosed a copy of “Hitler’s Discriminatory Decrees signed February 28, 1933.” Although the Nazi Decrees are written differently than S.3081, the McCain bill could bring America to the same place crushing free speech and personal liberty. Note how the Nazi Government in Section (1) and (4), similar to U.S. S.3081, suspend personal liberty— shutdown Free Speech to intimidate Citizens speaking out against Government:
See Section 1
“Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.”
Similar to McCain’s S. 3081, but using different wording the Nazi Government in Section (4) see below, suspended Constitutional rights, ordered the arrest of Citizens for any ACT that might incite or provoke disobedience against state authorities. McCain’s S.3081 instead mentions detaining and prosecuting Individuals for “supporting hostilities” against U.S. Government. S.3081 is so broadly written any person or group attending a protest could be arrested without provable cause and detained if government charged a protest-supported hostilities.
See Section 4
Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reichsmarks.
DECREE OF THE REICH PRESIDENT FOR THE PROTECTION OF THE PEOPLE AND STATE
Note: Based on translations by State Department, National Socialism, 1942 PP. 215-17, and Pollak, J.K., and Heneman, H.J., The Hitler Decrees, (1934), pp. 10-11.7
In virtue of Section 48 (2) of the German Constitution, the following is decreed as a defensive measure against Communist acts of Violence, endangering the state:
Section 1
Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.
Section 2
If in a state the measures necessary for the restoration of public security and order are not taken, the Reich Government may temporarily take over the powers of the highest state authority.
Section 4
Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reichsmarks.
Who ever endangers human life by violating Section 1, is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less that two years. In addition the sentence my include confiscation of property.
Whoever provokes an inciter to or act contrary to public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.
Section 5
The crimes which under the Criminal Code are punishable with penitentiary for life are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (floods), 315, paragraph 2 (damage to railroad properties, 324 (general poisoning).
Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:
1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich Government or of a state government, or provokes to such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;
2. Anyone who under Section 115 (2) of the Criminal Code (serious rioting) or of Section 125 (2) of the Criminal Code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person;
3. Anyone who commits a kidnapping under Section 239 of the Criminal with the intention of making use of the kidnapped person as a hostage in the political struggle.
Section 6
This decree enters in force on the day of its promulgation.
Reich President
Reich Chancellor
Reich Minister of the Interior
Reich Minister of Justice
Posted by: Dan Scott | April 14, 2010 2:23 PM