- 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
- 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
- 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
- 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,
- 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
- "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
- The provision refers solely to "citizens or lawful
resident aliens of the United States." However, the Constitution fully
- "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
- 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
- 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
- Imagine anyone challenging wealth and power interests
- 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
- Also visit his blog site at sjlendman.blogspot.com and
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