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Bill Proposes Locking Up Americans Without Criminal Charges

The Constitution is clear about what must happen when a person is accused of a crime: Except if the person is a serving member of the military during time of war, the accused has the right to due process of law, including a grand jury decision in cases of serious crimes, and to a quick and speedy trial, with many levels of protection from abuses by prosecutors, without being required to engage in acts of self-incrimination. These are the unequivocal requirements set down by the 5th and 6th amendments to the Constitution, and they cannot be overturned or overridden by any legislative action short of a new amendment to the Constitution.

Yet, overriding the 5th and 6th amendment is just what Senator John McCain intends to do with S. 3081, a bill he has named the Enemy Belligerent Interrogation, Detention, and Prosecution Act. Consider this ominous passage from the proposed law:

“An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial…”

I hope that captures your attention. John McCain is proposing that the federal government be given the power to imprison its own citizens without criminal charges and without any trial.

But what about the qualification that a citizen, in order to be imprisoned in this way, would need to be “determined to be an unprivileged enemy belligerent”? What does that mean? How, under McCain’s legislation, would an American be “determined” to fit into this category?

There are two steps to this process. In the first step, you’re grabbed and taken into military custody and declared to be a “high value detainee” eligible to be held in jail for two days without the ordinary legal rights that we Americans take for granted.

Below are the criteria for the status of a “high value detainee”, as proposed by McCain’s bill. Pause, and give an extra second’s consideration to the last criterion especially:

“(A) The potential threat the individual poses for an attack on civilians or civilian facilities within the United States or upon United States citizens or United States civilian facilities abroad at the time of capture or when coming under the custody or control of the United States.

(B) The potential threat the individual poses to United States military personnel or United States military facilities at the time of capture or when coming under the custody or control of the United States.

(C) The potential intelligence value of the individual.

(D) Membership in al Qaeda or in a terrorist group affiliated with al Qaeda.

(E) Such other matters as the President considers appropriate.”

Such other matters as the President considers appropriate? What could that include? Why, practically anything at all.

Maybe someone accuses you of harboring sympathies for al Qaeda. Maybe someone says that you’ve been seen in the company of fundamentalist Muslims. Maybe you’re undermining Homeland Security morale. Maybe the President has other matters on his mind that he just doesn’t want to discuss with anyone, and you get in the way.

“As the President considers appropriate,” you, an American citizen, could get thrown into a military prison and kept there for two days, and longer if that’s determined to be “practical”, without any chance of a hearing through which you can face your accusers. You’d then become subject to consideration for open-ended imprisonment without trial.

Criterion C is a rather loose justification for imprisonment, too. If the Enemy Belligerent Interrogation, Detention, and Prosecution Act gets passed, the American military could seize you and hold you as its prisoner based on the mere assertion that you might have information of some sort that would be of use to the government.

The landscape of interpretation of this part of the law is wide open, given that it requires merely a “potential” threat or possession of information. It’s almost impossible to prove that someone is not a potential threat. Potential is a matter of speculation of what might happen in the future if circumstances happen to go in a particular direction. John McCain’s bill replaces the need to base arrest warrants on evidence with a new low standard that allows the government to imprison American citizens only on the basis of imaginations of what future crime those citizens might commit in the future.

That power of imprisonment on the basis mere assertion is essential to understand when you evaluate this bill. You see, the determination of “high value detainee” status would not take place through a trial, or through an open hearing. McCain’s legislation establishes the power of the President to grant two “officers of the Executive Branch” the power to simply declare, without oversight or appeal, who is an enemy belligerent and who is not.

It gets worse. After an American citizen is designated a “high value detainee”, that person becomes eligible for designation as an “enemy belligerent”. An enemy belligerent is a person who meets the following criteria:

“(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposely and materially supported hostilities against the United States or its coalition partners; or
(C) was a part of al Qaeda at the time of capture.”

That certainly sounds serious. We’d all like to see people who are engaging in violent “hostilities” against our own country in prison, wouldn’t we?

Keep in mind, however, that this legislation doesn’t specify that the hostilities need to be violent in nature. Could hostilities include something else, such as creation of information that’s not amenable to the United States? Furthermore, the hostilities don’t even need to be against the United States. They could be against one of many foreign countries that are counted as “coalition partners”.

Even in this context, the designation of “enemy belligerent” is a matter of mere assertion. The Secretary of Defense and Attorney General would have the power to meet and declare an American citizen to be guilty as an “enemy belligerent” without trial.

Even if one of these two officials disagreed with the designation, the President would still have the power to override those objections, and throw the person into prison for life anyway. So, if the Secretary of Defense accused an American citizen of being an enemy belligerent, and the Attorney General had evidence that the charges were phony, the President could have the accused person locked up for life anyway.

This arrangement has the President, Attorney General and Secretary of Defense acting as de facto judges, although they’re not Judicial Branch officials. These judges are, at the same time, the leaders of the prosecution. The Judicial Branch is supposed to act as a check on the prosecutorial powers of the Executive Branch, but McCain’s bill contradicts this separation of powers, established in the Constitution.

The determination procedure as designed in the legislation creates a mechanism for the conviction of alleged criminals completely out of public view, without a real trial, or even a hearing, and certainly no right of the accused to confront their accusers. The right to legal representation, and the right to a jury of peers would be taken away as well.

If the White House wanted an innocent American citizen locked up, designated as an “enemy belligerent”, no one could stop it. The Enemy Belligerent Interrogation, Detention, and Prosecution Act thus creates the perfect mechanism for the imprisonment of political prisoners, right here in the United States.

Perhaps you’re still thinking that this law would not apply to you, because you’re living within the borders of the United States, where the military can’t just grab people off the street an imprison them without trial for as long as it likes. If the Enemy Belligerent Interrogation, Detention, and Prosecution Act is passed, those old rules wouldn’t apply any more. The new law would undo Posse Comitatus, placing Americans living in the USA under the authority of military law enforcement. The bill explicitly states that it applies everywhere on Earth: “within the United States, its territories, and possessions, or outside the territorial limits of the United States”.

Along with McCain, the following U.S. Senators have cosponsored the Enemy Belligerent Interrogation, Detention, and Prosecution Act:

Scott Brown
Saxby Chambliss
James Inhofe
George LeMieux
Joseph Lieberman
Jeff Sessions
John Thune
David Vitter
Roger Wicker

16 comments to Bill Proposes Locking Up Americans Without Criminal Charges

  • Tom

    John McCain is proposing that the federal government be given the power to imprison its own citizens without criminal charges and without any trial.

    Can we start with the politicians?

  • Jim

    What’s more, S. 3081 directs the government to keep mum and not let American citizens rounded up by the military “be informed of any rights that the individual may or may not have.”

    What good are your rights if you’re kept locked in a room and nobody is allowed to tell you what your rights are?

    • All the while, a special interrogation team that’s made up of CIA, domestic law enforcement, and soldiers from our own nation’s military are interrogating the American citizen, purposefully leading that citizen to feel that they don’t have the right to resist.

      This is what Homeland Security has come to: Members of Congress are proposing that the American military be used to target American citizens living right here in the USA. Our nation is turning on itself!

      The politics of fear have gone way over the line. If there are people suspected of crimes, fine, let’s prosecute them according to the law and the Constitution. However, there is no call to round up American citizens and imprison them without trial.

      • Jim

        Why are there only a few people out there who feel this is crazy?

        • That’s in the next article I’m writing: Corporate news media aren’t reporting on this bill. Search for the bill’s name, and you’ll find it’s bloggers, not journalists, who are calling the alarm on this one. Increasingly, journalists aren’t on the job, when it comes to anything but the top line legislation going through Congress. So, most people just don’t know about the bill – but among that do know about the bill, there’s strong opposition.

  • Tom

    Where’s those barrell-chested, freedom-defendin’ Tea Party-ers now? This is an issue to get righteous about!

  • Lady O

    THIS IS COMPLETELY INSANE — and the sad thing is that FEW care, and few are OUTRAGED by this MONSTROSITY OF A PROPOSITION!!! EVEN TO THINK in these terms is outrageous and scary — this will surely turn into 1984.

    This is all these damned senators have to do??? THEY should be BOOTED!!! There should be NO such thing as senator for life — I don’t care if the idiots vote for them again!

    Maybe then we can get some COMMON sense into the U.S. Gov.!

    And w/all the INTERNAL enemies we have in government against the U.S. Citize — WHO THE HELL NEEDS ANY OTHER TERRORISTS?

  • Dan Scott

    Are You Scheduled For Government Interrogation If Senate bill 3081 Is Passed?

    How might Americans respond should Government use this bill to take away their loved ones, family members and friends on mere suspicion?

    Sen. McCain’s bill S.3081 has the potential of spawning domestic terrorism in the United States.

    On March 4, 2010, Sen. John McCain introduced S. 3081, The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.”

    Under S.3081, an “individual” need only be Suspected by Government of “suspicious activity” or “supporting hostilities” to be dragged off and held indefinitely in Military Custody. Government will have the power to detain and interrogate any individual without probable cause. Government need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States or its coalition partners; or has purposefully and materially supported hostilities against the United States or its coalition partners. How could one prove to Government they did not purposely do something? “Materially Supporting Hostilities” against the United States could include any person or group that spoke out or demonstrated disapproval against an agency of U.S. Government. McCain’s bill has the potential of spawning domestic terrorism in the United States. Consider how Americans might respond should Government use this bill to take away their loved ones, family members and friends on mere suspicion. It is foreseeable many Americans might go underground to Resist Government Tyranny. Definition for Unprivileged Enemy Belligerent: (Anyone Subject to a Military Commission)

    At least under the Patriot Act, law enforcement generally needed probable cause to detain a person indefinitely. Passage of S.3081 will permit government to use mere suspicion to curtail an individual’s Constitutional Protections against unlawful arrest, detention and interrogation without benefit of legal counsel and trial. According to S.3081 Government is not required to provide detained individuals U.S. Miranda Warnings or even an attorney.

    Similar to fascist laws in other countries, S.3081 if passed will frighten Americans from speaking out. S.3081 is so broadly written, it appears any “individual” who writes on the Internet or verbally express an opinion against or an entity of U.S. Government or its coalition partners might be detained on the basis he or she is an “unprivileged enemy belligerent”, “supporting hostilities against U.S. Government.”

    See McCain Senate bill S.3081 at:
    http://assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

    FYI: below is enclosed a copy of “Hitler’s Discriminatory Decrees signed February 28, 1933.” Although the Nazi Decrees are written differently than S.3081 they bring America to the same place trashing free speech and personal liberty. Note how the Nazi Government similar to U.S. S.3081 has in Section (1) and (4) suspended personal liberty and shutdown Free Speech, to intimidate Citizens speaking out against Government:

    See Section 1
    “Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.”

    Similar to McCain’s S. 3081, but using different wording the Nazi Government in Section (4) see below, suspended Constitutional rights, ordered the arrest of Citizens for any Act that might incite or provoke disobedience against state authorities. McCain’s S. 3081 instead mentions detaining and prosecuting Individuals for “supporting hostilities” against U.S. Government. S.3081 is so broadly written anti-war protesters Tea Party Groups might be arrested and detained just for attending demonstrations.

    See Section 4
    Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reichsmarks.

    Some members in the Obama Government appear bent on curtailing Citizens’ rights especially Free Speech and Opinions. In the run up to Sen. McCain’s introduced S. 3081, it was reported Top Obama Czar Cass Sunstein Proposed Infiltrating all ‘Conspiracy Theorists’ in a paper prepared in 2008—that apparently expressed: Government should infiltrate and spy on Americans, their groups and organizations to obstruct Free Speech, disrupt the exchange of ideas and disseminate false information to neutralize Americans that might question government. See news story: http://www.wnd.com/?pageId=121884

    In 2008 perhaps coincidence: “The Violent Radicalization and Homegrown Terrorism Prevention Act”, was introduced by Rep. Jane Harman. The bill appeared to mirror a number of Czar Cass Sunstein’s spying proposals on lawful Citizens and interrupting groups without evidence of wrongdoing. Harman’s bill called for investigating and tracking Americans and groups that might be prone to supporting or committing violent acts of domestic terrorism. Harman’s bill had the potential of driving lawful political and other activists underground. Perhaps creating the domestic terrorists Bush II said Americans needed to be protected from. Rep. Harman’s “Violent Radicalization and Homegrown Terrorism Prevention Act” when closely examined, defined “homegrown terrorism” as “any planned act” that might use force to coerce U.S. Government or its people to promote or accomplish a “political or social objective.” No actual force need occur. Government would only need to allege an individual or group thought about it. Rep. Harman’s bill was often called the “Thought Crime Bill.”

    McCain’s S.3081 like Harman’s bill, mentions “non-violent acts” supporting terrorism in the U.S. and or emanating from America against a foreign government or “U.S. ally.” “Non-violent terrorist acts” are covered in the Patriot Act to prosecute Persons that support “coercion to influence a government or intimidation to affect a civilian population.” However U.S. activists and individuals under S.3081 would be much more vulnerable to prosecution, if (charged with suspicion) of “intentionally providing support to an Act of Terrorism”, for example American activists cannot control what other activists might do illegally they network with domestically or overseas. Under the Patriot Act, law enforcement generally needs probable cause to detain or prosecute someone. But under S.3081, law enforcement and the military can too easily use “hearsay” or informants to allege “suspicious activity” to detain an individual. Since 9/11 federal government established across the nation a large number of Fusion Centers. Fusion Centers were originally established to improve the sharing of anti-terrorism intelligence among different state, local and federal law enforcement agencies. (But since expanded to pursue all crimes and hazards); considering that: it is problematic under S.3081 that detained individuals in the U.S. not involved in terrorism or hostile activities, not given Miranda Warnings or allowed legal counsel will be prosecuted for ordinary crimes because of their alleged admissions while in military custody.
    Fusion Centers now pursue for analysis not just criminal and terrorist information, but any information that can be derived from police, public records and private sector data about Americans. Fusion Centers increasingly involve components of the U.S. Military in addition to other government entities to spy on Citizens. “The centers heavily rely on local “informants” for information that is shared with Local, State, and Federal police agencies.); “historically it is foreseeable” under S.3081 erroneous informant information will be used under S.3081 to detain innocent Individuals. Other governments have used lying informants to imprison and execute their political opposition. Recently the Department of Homeland Security began sharing more classified Military information with local Fusion Centers, perhaps a mistake, not all local police keep secrets.

    Fusion Centers circumvent Fourth Amendment Constitutional protections that prohibit illegal search and seizure, by taking advantage of ambiguous lines of authority to manipulate differences in federal, state and local laws to maximize information collection. Increasingly (private security companies and their operatives) work so closely with local/federal law enforcement and Fusion Centers—providing and exchanging information about Americans, they appear to (merge) with police. That is what happened in Germany during the 1930’s when a private-Gestapo merged its operations with German Federal Police. Subsequently Germany in 1939 placed all German Police agencies including the Gestapo under the control of the “Reich Main Security Office” the equivalent of U.S. Homeland Security. Notably, McCain’s S.3081 mandates merging Federal, State and local police and subsequently the U.S. Military to detain and hold Individuals in the U.S., even without probable cause. Interestingly a Rand Report prepared for the Army, recently made public, appears to suggest that U.S. Government develop a Local, State and Federal U.S. “National Police Stabilization Force merging State law enforcement with the Feds. What could happen to State Rights and what Laws and Jurisdiction would be used to prosecute state Citizens arrested by a National Police Stabilization Force? A National Police Force could potentially be sent by the President into any State with the approval of its governor, against the wishes of its Citizens? To clarify the Rand Corporation report visit:

    http://www.wnd.com/index.php?fa=PAGE.view&pageId=122533

    It should be expected under S.3081 that government would use an individual’s phone call and email information to allege without probable cause “suspicious or hostile activity against the United States.” It does not appear U.S. Government will stop wiretapping Citizens’ electronic communications. Just recently Pres. Obama’s signed Executive Order EO 12425 that put INTERPOL above the United States Constitution. Obama’s Executive Order authorized INTERPOL to act within the United States without being subject to 4th Amendment Search and Seizure laws. It would appear INTERPOL may now tap American phones and emails without a warrant. And that U.S. Police can use INTERPOL to circumvent the Fourth Amendment to arrest Americans and or forfeit their property by bringing INTERPOL into a criminal or civil investigation. Government can too easily take an innocent person’s hastily written email, fax or phone call out of context to allege “suspicious activity” or that a crime or violation was committed to cause an arrest or Civil Asset Forfeiture.

    DECREE OF THE REICH PRESIDENT FOR THE PROTECTION OF THE PEOPLE AND STATE
    Note: Based on translations by State Department, National Socialism, 1942 PP. 215-17, and Pollak, J.K., and Heneman, H.J., The Hitler Decrees, (1934), pp. 10-11.7
    In virtue of Section 48 (2) of the German Constitution, the following is decreed as a defensive measure against Communist acts of Violence, endangering the state:

    Section 1
    Sections 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the German Reich are suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

    Section 2
    If in a state the measures necessary for the restoration of public security and order are not taken, the Reich Government may temporarily take over the powers of the highest state authority.

    Section 4
    Whoever provokes, or appeals for or incites to the disobedience of the orders given out by the supreme state authorities or the authorities subject to then for the execution of this decree, or the orders given by the Reich Government according to Section 2, is punishable—insofar as the deed, is not covered by the decree with more severe punishment and with imprisonment of not less that one month, or with a fine from 150 up to 15,000 Reichsmarks.

    Who ever endangers human life by violating Section 1, is to be punished by sentence to a penitentiary, under mitigating circumstances with imprisonment of not less than six months and, when violation causes the death of a person, with death, under mitigating circumstances with a penitentiary sentence of not less that two years. In addition the sentence my include confiscation of property.

    Whoever provokes an inciter to or act contrary to public welfare is to be punished with a penitentiary sentence, under mitigating circumstances, with imprisonment of not less than three months.

    Section 5
    The crimes which under the Criminal Code are punishable with penitentiary for life are to be punished with death: i.e., in Sections 81 (high treason), 229 (poisoning), 306 (arson), 311 (explosion), 312 (floods), 315, paragraph 2 (damage to railroad properties, 324 (general poisoning).

    Insofar as a more severe punishment has not been previously provided for, the following are punishable with death or with life imprisonment or with imprisonment not to exceed 15 years:

    1. Anyone who undertakes to kill the Reich President or a member or a commissioner of the Reich Government or of a state government, or provokes to such a killing, or agrees to commit it, or accepts such an offer, or conspires with another for such a murder;

    2. Anyone who under Section 115 (2) of the Criminal Code (serious rioting) or of Section 125 (2) of the Criminal Code (serious disturbance of the peace) commits the act with arms or cooperates consciously and intentionally with an armed person;

    3. Anyone who commits a kidnapping under Section 239 of the Criminal with the intention of making use of the kidnapped person as a hostage in the political struggle.

    Section 6
    This decree enters in force on the day of its promulgation.

    Reich President
    Reich Chancellor
    Reich Minister of the Interior
    Reich Minister of Justice

  • anOPINIONATEDsob

    Another republican rant against the Constitution and you morons are scared of Obama, get real!

  • Luke

    I don’t understand how these changes to the law, if passed, could ever be found constitutional by the Supreme Court. If any case did come before the court, it would (at least then, if not before)get nation wide attention from the various members of the press who report on the proceedings of the Supreme Court. Yes, the effect of these changes is very scary; yes, it would be horrible for any person to be disappeared for the years before his/her case reached the Supreme court, but the court would act as the final arbiter of the legality of the detention.
    Of course, it is another question whether or not the Supreme Court would act in the appropriate manner and deem this law unconstitutional, but it is my opinion that even the most authoritarian members (to me: Scalia and Thomas) would not find this valid.

  • Luke

    This is very troubling that it is even being considered, especially in concent with all of the other laws that authoritarian members of Congress have passed in the last 11 years.
    I admit I don’t know all of the ramifications (though I can imagine a lot) that could happen to someone detained in this way before going before the Supreme Court, so either way, a horrible proposal by our ‘Freedom loving’ members of Congress. Their willingness to broaden the definitions of terrorism and who it applies to, and to broaden the scope of Patriot Act and all of the other rotten pieces of legislation shows the effectiveness of fear, poor thinking, divisiveness, propaganda, etc.

  • Luke

    To your question: “Why are there only a few people out there who feel this is crazy?”, I would propose several answers. Most of the entire group who would feel this is crazy and wrong are not aware of this website, or are not aware of any other site where it is being discussed, but there are other sites and people. As people become aware of it, they will hopefully express their thinking in other public forums and broaden the knowledge of others. I only mention it because feeling isolated and fragmented is at cross purposes with the functioning of the Net and our communal thinking. I do not think that we are isolated and fragmented in this, or in other expressions of fear about authoritarian government, but it gets expressed in a myriad of ways, including by members of the Tea party; unfortunately I think they have the wrong targets much of the time.

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