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OpEdNews Op Eds    H2'ed 12/7/11

Law Professors Outraged by Senate Vote on Indefinite Detention

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Ray McGovern is one of our country's most credible contrarians. When the ex-CIA officer talks, I tend to listen. Some of what I heard last week made my hair stand on end. Here's part of what Ray said:

In an article on Consortium News, entitled "Are Americans in Line for Gitmo?" Ray wrote:

"Ambiguous but alarming new wording, which is tucked into the National Defense Authorization Act (NDAA) and was just passed by the Senate, is reminiscent of the "extraordinary measures" introduced by the Nazis after they took power in 1933.

"And the relative lack of reaction so far calls to mind the oddly calm indifference with which most Germans watched the erosion of the rights that had been guaranteed by their own Constitution. As one German writer observed, 'With sheepish submissiveness we watched it unfold, as if from a box at the theater'.

"The writer was Sebastian Haffner (real name Raimond Pretzel), a young German lawyer worried at what he saw in 1933 in Berlin, but helpless to stop it since, as he put it, the German people 'collectively and limply collapsed, yielded and capitulated'.

"'The result of this millionfold nervous breakdown', wrote Haffner at the time, 'is the unified nation, ready for anything, that is today the nightmare of the rest of the world'. Not a happy analogy."

McGovern writes, "The Senate voted to authorize - and generally to require - 'the Armed Forces of the United States to detain covered persons' indefinitely. And such 'covered persons' are defined not just as someone implicated in the 9/11 attacks but anyone who 'substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces'."

He says the Senate "clearly wished for the military's 'law and order' powers to extend beyond the territory of military bases on the theory that there may be "terrorsymps" (short for "terrorist sympathizers") lurking everywhere."

And McGovern asks: "Is the all-consuming ten-year-old struggle against terrorism rushing headlong to consume what's left of our constitutional rights? Do I need to worry that the Army in which I was proud to serve during the 1960s may now kick down my front door and lead me off to indefinite detention - or worse?"

He adds, "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."

Well, and no doubt predictably to Ray McGovern, the Senate last week passed the National Defense Authorization Act. In doing so, it intentionally left unanswered what Ray McGovern calls "a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States, strip them of their constitutional rights, and hold them in military custody indefinitely and without a trial."

In passing the legislation - which still needs to be reconciled with a House bill - the Senators ignored the advice of virtually every senior figure in the military and the intelligence community. Carl Levin, powerful Democrat from Illinois, led the Committee.

And in passing this legislation the Senate, in effect, also thumbed its nose at the Supreme Court, which presumably settled this question in 2004 in the case of Hamdi v. Rumsfeld. Hamdi was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge.

Members such as Senator Lindsey Graham, Republican of North Carolina, says American Qaeda suspects arrested in the United States should not be exempted from battlefield-style detention. He said on the Senate floor, "And when they say, 'I want my lawyer,' you tell them: 'Shut up. You don't get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.' "

That construct was built on the premise laid down by former President George W. Bush in the aftermath of the 9/11 attacks. The president decided, in effect, that if the president did it, it was legal. Largely on that basis, he made the most sweeping power grab in recent political memory.

And, during his Administration, there were two cases of people held as enemy combatants arrested inside the United States, one of them a citizen. Lower courts reached contradictory opinions about whether holding them in indefinite military custody was lawful, and they were transferred to the civilian system before the Supreme Court weighed in.

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WILLIAM FISHER Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)
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