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