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In sum, the wording appears to create a parallel military justice system that, theoretically, we are all subject to. All that would be needed is an allegation by someone that we assisted someone who in some way assisted someone else in some way. An actual terrorist act would not be needed -- and neither would a trial by one's peers as guaranteed by the Constitution to determine actual "guilt."
Should you be tempted to dismiss this as "liberal fear-mongering," take a look at this item from FoxNews.com with its gleeful headline: "Democrat-Controlled Senate Passes Constitution-Shredding Defense Authorization Bill":
"The bill would require military custody of a suspect deemed to be a member of Al Qaeda or its affiliates and involved in plotting or committing attacks on the United States. ... The legislation also would give the government the authority to have the military hold an individual suspected of terrorism indefinitely, without a trial."'Since the bill puts military detention authority on steroids and makes it permanent, American citizens and others are at greater risk of being locked away by the military without charge or trial if this bill becomes law,' said Christopher Anders, senior legislative counsel for the American Civil Liberties Union."
A key element in the Senate bill, like the House version, is to expand the original Authorization of the Use of Military Force Act (AUMF) of September 2001 so it no longer links exclusively to 9/11. This creates the kind of ambiguity that allows Sens. John McCain, R-Arizona, and Lindsey Graham, R-South Carolina, to claim that the bill's stringent provisions do apply to U.S. citizens, as well as non-citizens.
In addition, the new wording adds "associated forces" (whatever that means) to the previous AUMF's list of targets. The language of the AUMF of September 2001 was limited to "those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."
Burning the Midnight Oil
It is a safe guess that the legal pharisees were burning the midnight oil, dissecting how the draft bill can say, on the one hand, that this or that provision does not apply to American citizens -- but, oops, this other provision seems to allow them to be shipped off to Guantanamo, too.
Not being expert enough to do so, I happily leave it to them to parse the language, diagram the sentences, and do surgery on each jot and tittle. There will be a veritable feast for the legal beagles.
What speaks loudest to me is the fact that two key amendments did not pass. Senate Amendment 1125 would have limited the mandatory detention provision to persons captured abroad. And Amendment 1126 would have provided that the authority of the military to detain persons without trial until the end of hostilities would not apply to American citizens. Both amendments were voted down 45 to 55.
Though President Obama has objected to the Senate bill as going too far even by his "death-to-Awlaki" standard, a more troubling question is what might these new powers mean if, say, another terrorist attack hits the United States or if a more hard-line president comes to power.
Take, for example, Texas Gov. Rick Perry, one of the Republican presidential hopefuls. Before a stump speech in Manchester, New Hampshire, on Tuesday, Perry gave us a hint of what his policies, and maybe even his Cabinet, would look like.
Perry flew in none other than racial profiler par excellence, the sheriff of Maricopa County, Arizona, Joe Arpaio. No, I'm not kidding; Perry apparently saw this as a way to strengthen his "law and order" credentials (accent, of course, on "order").
As I sat in the audience, Arpaio's arrival took me by surprise, so perhaps I can be forgiven for reflexively bellowing a prolonged boo, as Arpaio made his way slowly and carefully up to the lectern to warm up the crowd. Later it occurred to me that booing may be something that gets you on the chain gang in Maricopa County; Arpaio did not seem at all used to it, and he did not take it well.
Reaching the podium, he turned and demanded to know who was booing, so I stood up from my second-row-center seat and raised my hand high. Fortunately for me, he had none of his deputies along, and booing is apparently not yet banned at Town Hall meetings in New Hampshire. Only Arpaio seemed to pay much heed.
Although I knew enough about Arpaio to consider him fully deserving of a loud boo or two, I did not know the half of it. Let me treat you to some encomia from the sheriff's own official Web site:
"Arpaio knows what the public wants, [and] has served them well by establishing several unique programs. Arpaio ... started the nation's largest Tent City for convicted inmates. Two thousand convicted men and women serve their sentences in a canvas incarceration compound. It is a remarkable success story. ..."Of equal success and notoriety are his chain gangs, which contribute thousands of dollars of free labor to the community. The male chain gang, and the world's first-ever female and juvenile chain gangs, clean streets, paint over graffiti, and bury the indigent in the county cemetery.
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