It Could Happen To You

by digby

As we ponder how this torture legislation might develop in the future, it’s probably a good idea to check out how the intelligence community of the United States sees the threat of terrorism developing in the future. From the NIE:

Anti-US and anti-globalization sentiment is on the rise and fueling other radical ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt terrorist methods to attack US interests. The radicalization process is occurring more quickly, more widely, and more anonymously in the Internet age.

Let’s hope that our leaders in Washington don’t decide that the war on terror has expanded to such groups any time soon. (Although all the hoopla about Hugo Chavez’s remarks may just be a precursor to such designations.) But keep in mind, that the generic term “terrorism” is the word used in the new bill that:

blesses detainee abuse and looks the other way on forms of detainee torture; it immunizes terrible acts; it abridges the writ of habeas corpus– in the last, most egregious draft, it strips the writ for alleged enemy combatants whether proved to be so or not, whether citizens or not, and whether found in the U.S. or overseas.

For those in America who think that this only applies to dark skinned foreigners who don’t really deserve the rights that God gave Americans, this should give them pause:

Most of the attention in the press has focused on subsection (i) of the definition, which would designate as an UEC any “person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” And that subsection is, indeed, broad, and fairly indeterminate, depending on how “materially supported hostilities” is interpreted (something that the Administration apparently could do without much or any judicial review).

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any person “who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

Read literally, this means that if the Pentagon says you’re an unlawful enemy combatant — using whatever criteria they wish — then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to “hostilities” at all.

This definition is not limited to Al Qaeda and the Taliban. It’s not limited to aliens — it covers U.S. citizens as well. It’s not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it’s not even limited to a time of war or armed conflict; it could apply in peacetime.

Therefore if, as everyone is assuming, this definition does establish who may be detained by the military outside the civilian justice system, it would quite literally give the Secretary of Defense the statutory authority to detain just about anyone he wants, indefinitely. And if that’s the case, then the habeas-stripping provision would really be the least of it, because even with all the due process and habeas protections in the world, it would be almost impossible to challenge the grounds on which someone is detained if the Executive itself can establish what the permissible grounds for detention are.

I noticed that Carl Levin just praised the efforts of McCain, Graham and Warner again and said the new bill has two good things about it: it prohibits torture and secret evidence, which is just wrong. But he said that the compromise contains other things which are troubling and he will offer the slightly less shitty bill that came out of the Armed Services Committee later today as an alternative. It will probably fail, but perhaps all this McCain love today and the characterization of his bill as prohibiting torture and secret evidence is a way to bring over some wavering Republican senators, I don’t know. Sometimes the unexpected happens.

I’ll try to watch the debate for the rest of the day as I can. I’m not sure how much I’ll be able to see where I am. If you hear any good speeches, let me know. I’d like to give credit to those who stand up to be counted on this major issue of our time.

I think the bottom line is that most people don’t give a damn about a bunch of swarthy foreigners. They think the people in Guantanamo are animals and even if they aren’t exactly guilty of the things the US says they are guilty of, they are guilty of not being American. I don’t think they lose much sleep over it and they don’t see it as applying to them. But they are wrong. In light of the possibilities outlined above for using this legislation to “disappear” anyone from terrorists to leftists to those who are deemed to be anti-American, this may be a day to remember the famous poem by Pastor Martin Niemöller:

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for me,
there was no one left to speak out.

H/T to Professor Foland in the comments for the NIE language.

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