Saturday, May 14, 2011

Welcome to the Gutter

A Facebook friend turned me on to this article regarding H. R. 968, The Detainee Security Act of 2011.  It is sitting in the House Armed Services Committee and apparently is coming up in tandem with the National Defense Authorization Act.

What is so worrying about this bill?  It employs an Orwellian approach to conflict by proposing  indefinite detention of combatants, without trial in Section 130e, and leaving open the possibility, if not probability, that this, or future, Presidents might engage in further state sponsored violence against whomever is determined to be a threat to America.  From Section 130e;

The disposition of a person as described in paragraph (1) may include the following: 
    (A) Long-term detention without trial until the end of hostilities against the nations, organizations, and persons subject to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note). 
    (B) Trial under chapter 47A of title 10, United States Code.

In case you missed the point, it's restated for you in Section 130g;

(a) AFFIRMATION.—Congress affirms that— 
    (1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
    (2) the armed conflict with al-Qaeda, the Taliban, and associated forces includes nations, organizations, and persons who— 
       (A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or cobelligerents; or 
      (B) have engaged in hostilities or have substantially supported hostilities against the United States or its cobelligerents on behalf of or in aid of al-Qaeda, the Taliban, or associated forces; and
  (3) the President’s authority includes the authority to detain belligerents, including persons decribed in paragraph (2) until the termination of hostilities.

In case you were wondering who is eligible for such detention;

(1) The term ‘individual who is eligible for detention pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note)’ includes— 
    (A) any individual who is part of, or is substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or cobelligerents; and 
   (B) any individual who has engaged in hostilities or has substantially supported hostilities against the United States or its cobelligerents on behalf of or in aid of al-Qaeda, the Taliban, or associated forces. 

So just when do the hostilities in the war on terror, which we are told is ongoing, end?  Suppose the Taliban exit the stage and a new group appears?  Do we just amend the act and change the names of the suspect organizations?  When you are dealing with non-state actors, who is it you negotiate with to arrive at the end of a conflict?

Representative John Conyers (D-MI) (joined by 32 of his peers) has laid out his concerns.

Among the many troubling aspects of the Detainee Security Act are provisions that expand the war against terrorist organizations on a global basis.  The Authorization for the Use of Military Force (AUMF) of 2001 was widely thought to provide authorization for the war in Afghanistan to root out al Qaeda, the Taliban, and others responsible for the 9/11 attacks.  That war has dragged on for almost ten years, and after the demise of Osama Bin Laden, as the United States prepares for withdrawal from Afghanistan, the Detainee Security Act purports to expand the "armed conflict" against the Taliban, al Qaeda, and "associated forces" without limit.  By declaring a global war against nameless individuals, organizations, and nations "associated" with the Taliban and al Qaeda, as well as those playing a supporting role in their efforts, the Detainee Security Act would appear to grant the President near unfettered authority to initiate military action around the world without further congressional approval.  

According to Conyers, the bill was scheduled for markup, without hearings, on May 12, 2011.  The status page at Thomas does not yet show the outcome, check it for further info.

Something Conyers does not address is the impact of this bill, if enacted, on our moral authority and credibility.  If you read the entire bill, the non-citizen/non Armed Forces detainees (who will be housed at Guantanamo if the bill is signed as written) won't be going anywhere unless very specific criteria are met, which basically inserts the US into the internal workings of other nations.  They will not be provided legal counsel, only a personal, military representative.  They also won't be getting visits from family members.

We insist that folks, like the unfortunate hikers arrested in Iran, who find themselves under detention by a government we are at odds with be given access to consular representatives (whether ours or a substitute), due legal support, and otherwise treated humanely.  However this bill denies such niceties to the detainees on the assumption that they are a de facto threat to the nation.  The Geneva Convention was deemed not to apply to such individuals.  What is the incentive for unfriendly governments to release American citizens, detained for what may be spurious reasons, if we claim the right of indefinite detention of suspects?  With no legal counsel, how can those suspected individuals ever establish that they were detained without sufficient cause or evidence?  How dare we claim the moral high ground when we are willing to even consider a bill that imposes restrictions we would never accept from a foreign power?  Perhaps Mr. Conyers and his peers are not ready to deal with that implication, but if this bill passes and gets through the Senate, they may well come to regret that oversight.

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