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Congress endorsing military detention, a new AUMF

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Even with regard to using the military to imprison U.S. citizens arrested on U.S. soil, this has already been done: that's exactly what the Bush administration's lawless, due-process-free, 3 1/2 year imprisonment of Jose Padilla was. And the Fourth Circuit explicitly approved this power, a decision which stands because the Supreme Court cowardly refused to rule on it on "mootness" grounds after the Bush administration, right before the Court was to hear the case, finally charged Padilla with crimes in a civilian court.

It's true that the Obama administration has not sought to hold any U.S. citizens in military custody (they apparently prefer the assassination route to the indefinite detention route). It's also true that, to their genuine credit, the Obama White House has strenuously objected to the military detention provision of the bill to the extent it applies to U.S. citizens on American soil, arguing that such a power "would be inconsistent with the fundamental American principle that our military does not patrol our streets." But even there, the essence of this bill -- that the entire world is a battlefield, including (by definition) U.S. soil -- has long been (as I've always argued) the most important and most dangerous component of the Bush/Cheney War on Terror, because it means the President can exercise "war powers" anywhere in the world against anyone he accuses of being a "belligerent." And that premise is one that has been fully embraced by Obama officials as well.

Indefinite, charge-free military detention of people accused -- accused -- of Terrorism has been fully embraced by both the Bush and Obama administrations (it's one of the reasons some of us have been so vocally critical). The Obama administration has gone even further and argued that it has the power not merely to detain accused Terrorists (including U.S. citizens) without due process, but to kill them. It is true that the Obama DOJ has chosen to try some accused Terrorists in civilian courts -- and this bill may make that more difficult -- but the power of military detention already rests with the Executive Branch. And while it would be worse for Congress to formally codify these powers and thus arguably overturn long-standing prohibitions on using the U.S. military on U.S. soil, the real legal objections to such detention are grounded in Constitutional guarantees, and no act of Congress can affect those. In sum, this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest. That's not a mitigation of this bill's radicalism; it's proof of how radical the Executive Branch under these two Presidents has already become.

Read the rest of this critical article, plus Updates, at Salon

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For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, How Would A Patriot (more...)

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