COMMENTARY:

The McCain-Lieberman Police State Act

by Stephen Lendman
Friday, 26 March 2010
It comes down to "the rule of law or the rule of fear." Protecting American citizens and national security is one thing. Discarding core legal principles to do it reflects the worst elements of police state justice.

If enacted, it will advance what this writer addressed in a December 2007 article titled, "Police State America - A Look Back and Ahead," covering numerous Bush administration laws, Executive Orders (EOs), National and Homeland Security Presidential Directives, edicts, and various illegal acts targeting designated domestic and foreign adversaries, dissent, civil liberties, human rights, and other democratic freedoms.

Straightaway post-9/11, George Bush signed a secret finding empowering the CIA to "Capture, Kill or Interrogate Al-Qaeda Leaders." He also authorized establishing a covert global gulag to detain and interrogate them without guidelines on proper treatment.

Other presidential directives ordered abductions, torture and indefinite detentions. In November 2001, Military Order Number 1 empowered the Executive to capture, kidnap or otherwise arrest non-citizens (and later citizens) anywhere in the world for any reason and hold them indefinitely without charge, evidence, due process or judicial fairness protections of law.

The 2006 Military Commissions Act authorized torture and sweeping unconstitutional powers to detain, interrogate and prosecute alleged suspects and collaborators (including US citizens), hold them (without evidence) indefinitely in military prisons, and deny them habeas and other legal protections.

Section 1031 of the FY 2010 Defense Authorization Act contained the 2009 Military Commissions Act, listing changes that include discarding the phrase "unlawful enemy combatant" for "unprivileged enemy belligerent." More on that below.

Seamlessly, Obama continues Bush administration practices and added others, including:

Now, the March 4 S. 3081: Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 to interrogate and detain "enemy belligerents who commit hostile acts against the United States to establish certain limitations on the prosecution of such belligerents, and for other purposes."

On the Senate floor, John McCain explained it, saying "we still don't have a clear mechanism, legal structure, and implementing policy for dealing with terrorists who we capture in the (alleged) act of trying to bring about attacks on the United States and our national security interests at home and abroad."

These suspects have no right to "Miranda warnings and defense lawyers. Instead, the priority and focus must be on isolating and neutralizing the immediate threat and collecting intelligence to prevent" any attacks.

"I (also) believe we must establish a system for long-term detention of terrorists who are too dangerous to release, but who cannot be tried in a civilian court" because no evidence exists to convict them.

At a March 4 press conference, Senator Joe Lieberman told reporters:

"These are not common criminals. They are war criminals. Anyone we capture in this war should be treated as a prisoner of war, held by the military, interrogated for information that will protect Americans and help us win this war and then where appropriate, tried not in a normal federal court where criminals are tried but before a military commission."

S. 3081 Provisions

The bill imposes harsh police state measures, including:

Pending final determination, detainees "shall be treated as unprivileged enemy belligerent(s)," defined as:

"An individual, including a citizen of the United States (to) 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."

An "unprivileged enemy belligerent" means anyone (with or without evidence) suspected of "engag(ing) in (or materially supporting) hostilities against the United States or its coalition partners," including alleged Al Qaeda members.

Raised Concerns

Designating individuals "unlawful enemy combatants" or "unprivileged enemy belligerents" places them in legal limbo, contrary to international law, the Constitution, and three recent Supreme Court decisions:

Obama-ordered preventive detentions (against uncharged persons) and S. 3081 violate international law, the Constitution, and the above Supreme Court decisions.

Writing for the Jurist Legal News & Research, University of Utah Law Professor, Amos Guiora, calls the proposed bill "the latest example of panic-based legislation" in the wake of the (false flag) December airplane bombing and whether alleged 9/11 suspects will be tried in federal or military courts - Khalid Sheikh Mohammed and others falsely charged based on tortured-extracted confessions.

Holding detainees through "end of hostilities in the terrorism paradigm is a euphemism for indefinite detention....subject(ing) an extraordinarily broad group of persons" to cruel and inhumane treatment based on unsubstantiated charges, and denying them due process and judicial fairness.

Guiora calls the proposed law:

"a fundamental miscarriage of justice created by the unconstitutional denial of the right to counsel, the right to remain silent, the right to be free from arbitrary, let alone indefinite detention, and the right to a day in court." Unfortunately, too often "legitimacy and justification take a back seat" to expediency and the political climate of the times.

As a result, innocent victims are unjustly arrested, called terrorists, interrogated, tortured, indefinitely detained and denied all rights despite constitutional and international law protections.

"Republicans and Democrats alike have failed to articulate, create and implement a lawful interrogation, detention and trial regime for post-9/11 detainees. That is shameful and reflects negatively on two Presidents, the Congress and the Supreme Court."

The major media also. Their reports hype the threat, pre-determine guilt, and influence public opinion to believe government-charged individuals are dangerous, guilty, and should be confined to deter "terrorism."

Yet the Constitution's Fifth Amendment states:

"No person shall....be deprived of life, liberty, or property without due process of law....;" and

The 14th Amendment reads:

No "State (may) deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Yet in a climate of fear and intimidation, everyone is potentially vulnerable to legislative lawlessness if congressional timidity lets S. 3081 pass in an election year.

According to Guiora, it comes down to "the rule of law or the rule of fear." Protecting American citizens and national security is one thing. Discarding core legal principles to do it reflects the worst elements of police state justice.


Stephen Lendman

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. His blog is sjlendman.blogspot.com.

Listen to Lendman's cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

Mr. Lendman's stories are republished in the Baltimore Chronicle with permission of the author.



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This story was published on March 26, 2010.