McCain Bill Enables US Citizen Imprisonment Without Trial
Ex-POW Senator John McCain is the sponsor, along with 9 co-sponsors, of Senate bill S.3081, which in open and direct defiance of the Supreme Court ruling in Miranda v. Arizona, the case that created your so-called “Miranda rights,” provides for the indefinite detention of people, including US citizens, without advising them of their rights, without criminal charges, and without a trial.
This isn't one of those three-inch thick bills that's impossible for ordinary people to understand. The text of the bill is just a couple of pages, somewhat scary, and well worth your time to skim or read in full.
Excerpts of S.3081
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SEC. 3. INTERROGATION AND DETERMINATION OF STATUS OF SUSPECTED UNPRIVILEGED ENEMY BELLIGERENTS.
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(b) Interrogations-
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(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.
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(d) Regulations-
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(2) CRITERIA FOR DESIGNATION OF INDIVIDUALS AS HIGH-VALUE DETAINEES- The regulations required by this subsection shall include criteria for designating an individual as a high-value detainee based on the following:
(A) The potential threat the individual poses for an attack on civilians or civilian facilities ...
(B) The potential threat the individual poses to United States military personnel or United States military facilities ...
(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.
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SEC. 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS. 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 for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.
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Yes, criteria are outlined, but it doesn't say how much weight each is to be given, or whether any may be ignored. This is a problem familiar to me because under United States copyright law, there is an exclusion of copyright protection called “fair use.” Fair use has four criteria, but as with Senate bill S.3081, there is no advice about how to apply the criteria. If you want to know how S.3081 will resolve this ambiguity, you have to look no further than what has happened with the similarly-structured fair use issue:
Copyright and Fair Use Overview (fairuse.stanford.edu)
Measuring Fair Use: The Four Factors
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.
So any of the five criteria cited in Section 3(d)(2) of Senate bill S.3081, could be applied in any proportion by the government. And one such arrangement of that is to apply primarily or only Section 3(d)(2)(E), giving the President the power to decide. It should be clear that this is a recipe for allowing any sitting president to make up any rules he wants.
Perhaps there was a time long ago when such a gaping hole could be ignored, when Presidents could simply be relied upon to be reasonable. But given the way the Bush administration sought to expand the power of the Presidency, and the way the Obama administration promised to rein in such power but then has been slow to do so, it's worth asking whether it's wise to leave such matters as the imprisonment of the citizenry to “such other matters as the President considers appropriate.”
These are turbulent times. Authors like Ann Coulter write books that are widely celebrated by Republicans, accusing an entire political party of Treason.
Excerpt from dust jacket of Treason, by Ann Coulter
“Liberals' loyalty to the United States is off-limits as a subject of political debate. Why is the relative patriotism of the two parties the only issue that is out of bounds for rational discussion?”
In a stunning follow-up to her number one bestseller Slander, Ann Coulter contends that liberals have been wrong on every foreign policy issue, from the fight against Communism at home and abroad, the Nixon and the Clinton Presidencies, and the struggle with the Soviet empire right up to today's war on terrorism. “Liberals have a preternatural gift for always striking a position on the side of treason,” says Coulter. “Everyone says liberals love America, too. No, they don't.”
...
She was named one of the top 100 public intellectuals by federal judge Richard Posner in 2001.
One might laugh this off as a writer's sensationalism, but consider the following remarks by former Vice President Dick Cheney, in an interview with Politico:
Transcript of Remarks on State of the Nation with John King
Sunday, March 15, 2009
KING
By taking those steps, do you believe the President of the United States has made Americans less safe?
CHENEY
I do. I think those programs are absolutely essential to the success we enjoyed, of being able to collect the intelligence that let us defeat all further attempts to launch attacks against the United States since 9/11. I think it's a great success story. President Obama campaigned against it all across the country, and now he's making some choices that, in my mind, will in fact raise the risk to the American people of another attack.
Here's another by Cheney:
Transcript of Remarks offered to Politico
Late November, 2009
CHENEY
... You're going to close Guantánamo and you're going to bring Khalid Sheikh Mohammed and crew to New York City for a trial in the criminal district court. Our Al Qaeda adversaries out there are going to think this is a great set of developments for their cause because one of their top people will be given the opportunity courtesy of the United States Government and the Obama administration to have a platform from which they espouse this hateful ideology that they adhere to. ... I think it's likely to give encouragement — aid and comfort — to the enemy. ...
These words, “aid and comfort,” are central to the legal definition of treason, by the way.
Treason (US Constitution, Article III, Section 3)
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
There's really no chance that Mr. Cheney used these specific words by accident. He wasn't in office at the time he spoke. It's just his personal opinion. But the point is that there seems little doubt that he had been capable of similar feelings while in office, and that at least demonstrates that it's possible for a credible officeholder to conclude that their political opponents are treasonous. If that ever happened, horrible things would result.
If you want further reading on this Republican passion for calling out their opposition as actively treasonous, I refer you as well to the “CIA Columbia Obama Sedition and Treason Trial, which was discussed in May by Alex Pareene in Salon's War Room.
And as if all this was not enough, there was this in Friday's Politico:
GOP plans wave of White House probes (Politico)
by Glenn Thrush | August 27, 2010
If President Barack Obama needed any more incentive to go all out for Democrats this fall, here it is: Republicans are planning a wave of committee investigations targeting the White House and Democratic allies if they win back the majority. ...
It seems that hyperbole and misinformation have come to rule the day. From questions about the President's well-documented personal status as an American or a Christian to characterizations of the President's policies as equivalent to those of Satan or Hitler, to the routine inappropriate characterization of the motives of political opponents as traitors, the Republicans and the Tea Party have shown we should think twice before relying on sloppily worded legislation to protect us.
When John McCain, a man who spent more than five years in a POW camp, proposes that the US Government, which we would hope to have seen as a beacon of hope for freedom world-wide, should be allowed to decide for itself, without review or notice, who is an enemy that needs to be detained indefinitely without trial and without notice of rights, we're in serious trouble.
And, by the way, I've referred to detention being “indefinite,” but the actual bill says “for the duration of hostilities.” There's just one problem with that: There is presently no declared war going on. So it's not obvious what the end of hostilities would be. Would it be when terrorism is erradicated? That's unlikely to happen in our lifetimes. Even if you go by the official conflict, it was dubbed “The Long War“ during the Bush Administration, a tacit acknowledgment that we're not talking about some short span of time.
Nor am I opposed to keeping these guys locked up. I just want to do it with a trial so that the facts can be established and tested. We are a nation of laws. We call ourselves civilized. As political conservatives are so quick to point out, we're about the Constitution. The Fifth Amendment to the US Constitution assures us that:
No person [Note: not just citizen, but person] shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Note that it says we won't be held for a crime nor deprived of life, liberty, or property without due process. That's surely why this legislation permits a person held without a criminal charge. Doing so may be to intentionally dodge the Fifth. Surely that's a violation of the spirit of the Amendment, and hopefully the Supreme Court will rule as such. Shame on them if they uphold that.
John McCain calls himself a conservative. And yet conservatism is supposedly rooted in personal freedom and the placement of limits on government. Why, then, is McCain supporting this move to grossly expand the power of government at the expense of the individual? Not only does the move bother me from a moral point of view, it doesn't even seem consistent with what I understand about conservatism.
If you got value from this post, please "rate" it.
Updates
Thanks to Just Thinking... for noting I should have included some advice about what you can do if you don't like this:
- You can click here to contact your Senator asking them to oppose Senate bill S.3081.
- I don't know if there is a corresponding house bill yet, but just in case, you can click here to contact your Representative.
Thanks to Roy Jimenez for noting in discussion that I should have enumerated the co-sponsors. The co-sponsors are:
Sen. Scott Brown (R-MA)
Sen. Saxby Chambliss (R-GA)
Sen. James Inhofe (R-OK)
Sen. George LeMieux (R-FL)
Sen. Joseph Lieberman (I-CT)
Sen. Jefferson Sessions (R-AL)
Sen. John Thune (R-SD)
Sen. David Vitter (R-LA)
Sen. Roger Wicker (R-MS)
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RomanticPoetess
Sandra Stephens
old new lefty
marytkelly
oaxacangringa
CoyoteOldStyle
Salon.com
Comments
No time for an intelligent comment right now Kent. Hope I can come back later today.
Are we going back to the dark ages?
Rated with hugs
Sadly, we are a nation of people who have denounced critical thinking--figuring out what the actual facts are, paying attention to what is being said and what it really means. We risk a lot by not being better informed and doing whatever we can to prevent this kind of evil from being perpetrated on our country.
As for Ann Coulter she is so absurd that if anyone has to debunk her to someone they must be addressing the stupidest or most thoroughly indoctrinated people on the planet! She couldn’t be more satirical if she tried; which maybe she is. A lazy comedian who plays her clips without comment should get a lot of laughs.
Those in power will be able to accuse and execute any one they want to without any laws if this is implemented. In the most extreme case this could be used to target those who research the root causes of terrorism. The USA has been propping up tyrants for political reasons for decades and some of this is clear retaliation. I’m not saying the terrorists should be allowed to do this of course but their grievances should be addressed before they feel they have no other course of action but terror. There should be more effort to educate the world and less to suppress it inciting hatred. A close look at history will indicate that the USA supported those that became Al Qaeda against the USSR then abandoned them and disregarded the human rights they pretended they were protecting.
-R-
Actually, it's already showing in select theatres.
Click here to contact your Senator.
Since it's presently a Senate bill, it may not matter to your Rep y et, but just in case it gets further along:
Click here to contact your Representative.
Cheney's a moral and physical coward who's mastered the arts of Machiavelli, a man who'll stoop to any crime no matter how despicable, who'll spread any lie no matter how destructive
Ann Coulter is a tasteless joke
it's instructive to see how eagerly the right ally themselves with the aims and interests of the terrorists to destroy what's left of American liberty and justice
btw, the co-sponsors are Scott Brown, R-MA; Saxby Chambliss, R-GA; the infamous James Inhofe, R-OK; George LeMieux, R-FL; the execrable Jefferson Sessions, R-AL; John Thune, R-SD; Roger Wicker, R-MS; the sleazy David Vitter, R-LA; and wouldn't you know it, Joe Lieberman I-CT
The denial of Miranda comes more from the paranoid right wing meme that suspects will "lawyer up" and clam up, depriving us of the ability to extract information. While the Roberts court has chipped away at Miranda to the point it's less a requirement, this intends to wipe it away, and only for purely cosmetic reasons. I doubt anyone seriously engaged in direct support of terrorism, or anyone who has watched police dramas on TV, doesn't know of those rights.
Making law that depends on one person's interpretation of the crime or the danger involved is so open to abuse it should be considered as such, and dismissed. (see Cheney, above)
The 5th amendment could allow this, as the law can be described as due process, to a point, because that definition changes and is more open to interpretation. "in times of war or public danger" might be the seasoning that makes it palatable.
The 6th amendment is the one wiped away by allowing the citizen to be pushed into the enemy combatant hole.
6th --" In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."
That it could be suspended for the "duration of hostilities" is, as you point out, the same as a life sentence as far as the "war" on terror goes. Given the ambiguity involved, I don't think this should be allowed, even for the most terrible of terrorists. Charge them, try them, lock them up or set them free...within a far more reasonable definition of "duration."
To not do that leads to Gitmo -- too much a propaganda device used to convince Americans that 'something is being done."
Another consideration regarding this and similar stretching and breaking of the BoR is that, as America's standard of living is sold to the highest bidder, such laws that rely on vague rules of threat definition can be interpreted to keep angry Americans in line.
This doesn't mean there is even a hint of that intent among these political posturing pricks, but in a pinch, tamping out organized dissent will gravitate towards whatever is available.
Thanks for shining a light on this, Kent.
but you are determined to remain serfs rather than citizens, political cattle rather than masters of your nation. being human, you will also complain how unfair it is to have to endure the consequences of ignorance, laziness, and timidity.
i formally extend sympathy now: "oooh, that's terrible."
but you have to save yourselves, or learn to smile as you run down the ramp to the killing floor.
Deborah, I don't know that McCain is so much addicted to power as deluded into thinking he's doing good. At this point, he's just a puppet for someone else, having lost his much-touted maverickiness a long time ago. Any warm body could do the being-a-puppet if that's all he's going to do. But then, maybe he's terrified of what life would be like as one of the ordinary civilians that he and his party have neglected for so long.
Linda, it's weird that both the Left and the Right are probably asking that same question. We're like Good Kirk and Bad Kirk and it's a shame we can't talk to one another any longer, but I think it's specifically the Republicans that have sponsored the campaign of hate, and I think they need to stand down. It's just not obvious how they can, since the more they lose, the more desperate for money they get to regain power, and the more susceptible they are to wealthy individuals offering to bankroll them, leading them to be more corrupt... it's a bad spiral.
Steven, the metaphor seems mostly a good one, except maybe it's an iceberg that was being carried in the cargo hold and has been dumped overboard in front of the ship ... a collision of our own making.
Harry, I think this is false. These politicians can survive time off because they will just run the next time. What they cannot survive is having their party not support them. If their party says it will support them in the off time as long as they toe the line, that's where the trouble is. In fairness, it's not the legislation per se. It's bad but it's a short bill and we could discuss it. What's bad is that they've chosen not to discuss it. That's where the breakdown is. The lack of engagement.
Susan, asking people to pay attention to facts is, sadly, not very inclusive. You seem to have a pretty progressive outlook, so surely you can understand their desire not to be excluded.
zachery, the future will likely look back and conclude that it requires more than mere words of patriotism and truth and justice and honor to be a country of patriots, truth-tellers, just souls, and honorable people. A country built on ... well, see my article from last spring titled Hollow Support. I think you'll see what I mean.
Peter, thanks.
Bonnie, I think he's just so practiced at being himself that he's forgotten who he is. Saying “mean” suggests somehow that he has passion. I'm not really sure he does. I think he's got no sense of direction and a lot of fear, and he grasps onto things like this because they appear to give him definition. I don't know whether he was ever better than this, or if he's always been without direction—I haven't followed his history for his whole career. As to senile, I wish I could blame it on that. He seems sharp enough that I don't think you can appeal to that as a reason. I think he's maybe just done the “I was a POW” thing so much that he has blocked the real experience and is more focused on how it plays on the campaign trail. But who knows? I'm just guessing.
Hi, Hello. I haven't seen you in a while. Thanks for visiting. Sorry it was not for something cheerier.
LadyMiko, if you have further thoughts, please share them. Thanks for coming by.
Anna, if we vote these people into a majority I'll have that question for sure. I'd like to think this is just the desperate act of a minority. We'd better get active and make sure they stay a minority.
Jonathan, happy to help. Glad you got something from it.
Dienne, it's creeping much too much into real life, yes.
Roger, good to see you. I wouldn't feel bad about once having respected him. People change, and I don't think a bad act rewrites the history of who one was. I didn't know him before so I don't have such a conflict in me, but it must be hard for people who held a certain view toward him to change.
Just Thinking..., I updated the article to have the suggestions about who to contact.
Thanks to both of you for the suggestions.
We are entering a dark age methinks.
Jack, I double-checked when responding to Roy's list of co-sponsors and McCain is the official “sponsor” so I guess he has slightly more responsibility. Also, I don't regard him as old and senile, but rather sad and desperate. I don't like ad hominem arguments, either. It doesn't advance the discussion, and it risks offending even friends. I think it's enough that the bill is dangerous. The man is duly elected and must be dealt with as any sitting Senator would be.
al, yes, I know you like citizens initiatives, but do you favor direct populism? Even if one had federal citizens initiatives, one would still have government by these otehr people. Where do you live that employs something else? Does it work? I so often just don't understand where you're coming from either figuratively or literally.
cmulder, I'd need a little more context to reply usefully.
trig, I wondered about that, too. I think it must be either just a stunt or else a desire to put stuff into law to avoid the Supreme Court meddling in certain ways. Some Supreme Court rulings are based on rights, but some are just covering for absent regulation. Maybe they're trying to narrow the gap.
Abrawang, you get a big “bingo” from me on that. I think your theory is spot on.
Ablonde, even if the rest of the first world lives better, we'll still have the service mark on phrases like We're Number One. (sigh) It's all about clever sloganeering, don't you know? As for dark ages, I like to think we could avoid them by voting well.
I'm sure that Dick Cheney's salivary glands are working for 3018. But it can't be considered a viable proposition right now for a number of reasons. First, given the nature of the Senate, it's hard to see a filibuster proof version of this bill ever making it out alive from the upper house. Second, since any significant legislation takes approximately ten years to go from start to presidential pen, we don't have to hold our breath on this one.
However, S 3018 does give a very good view (unfortunately) of the mindset of the senators who sponsored this crock of roody-poody.
As to your article:
It's mind-boggling to me how double-speak has become the next American dialect.
We'll have to pull our heads out of the sand on this one if, before too long, we would apply for peace. I fear we may be too late.
Dreadful, actually.
Rated
P.S. same goes for the rest of those dick weasels.
C Berg, sorry about the bad reaction. Quite understandable. (Note to self: Need to work out web technology for supplying barf bags with stories like this.)
I just hope the uninitiated take notice somehow. Thanks for this post, Kent.
This stance by McCain is no surprise. When he returned as a POW and was rewarded with a senate seat, he worked very hard to bury any evidence that there were any POWs or MIAs still left in Vietnam, despite photographic evidence of soldiers' names outlined in white rocks on the ground many years after. The man has no conscience or character.