Senate Votes for Military Control of Terrorist Detainees; Defies Threat of Veto

The Senate voted yesterday in a 61-37 split for the 2012 National Defense Authorization Act, which includes a controversial provision that would place terror suspects into immediate military custody.  The measure, brokered by the Senate Armed Services Committee Chairman Carl Levin (D-MI) and Republican ranking member John McCain (R-AZ), excludes American citizens per se, but targets “al Qaeda operatives, even if they are captured in the U.S. and are American citizens, and also reaffirmed the policy of indefinite detention.”  The vote was in defiance of a threatened veto by Obama.

The vote exposed a rift in the Democrat bloc, and included sixteen Democrat senators (including Robert Casey (D-PA), Claire McCaskill (D-MO), Robert Menendez (D-NJ), Ben Nelson (D-NE), Joe Manchin (D-WV), and Debbie Stabenow (D-MI) in seats up for re-election in 2012) and Joe Lieberman (I-CT), a former Democrat until expelled by his state party but who nevertheless continues to caucus with them.  In opposition, Mark Udall (D-CO) tried to strip the military custody and detention provisions in favour of further study, supported by Rand Paul (R-KY) and Mark Kirk (R-IL).

The provision addresses the grey area of terrorists, whether they have successfully completed a terrorist act or not, who are captured in areas other than a battlefield (already covered under the Geneva Conventions).  It is said by some that the military is always ready to fight the previous war (just as the Left is always ready to march in the last demonstrations) but international law is not set to cover circumstances of war that have already by overtaken by events.  Many of the frankly political arguments played out in the media that have occurred in this realm since 11 September 2001 are made without reference to history, and this measure places the topic back into the precedents that were established from the time of George Washington up through World War II.

Senator Lindsey Graham (R-SC) commented: ”We’re no longer going to have an absurd result that if we capture you overseas where you’re planning an attack on the United States, we can blow you up or put you in a military prison indefinitely, but if you make it to America, all of a sudden you get Miranda rights and you go to federal court.”

The DNI, James Clapper, in speaking for the administration, said, “The best method for securing vital intelligence from suspected terrorists varies depending on the facts and circumstances of each case.”  He said that the administration needs more flexibility in handling the suspects, and the White House threatened to veto the bill if it “challenges or constrains the president’s critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation.”  Conversely, it removes the possibility of a repeat of the foolhardy treatment of Umar Farouk Abdulmutallab, who tried to detonate a bomb in an airliner over Detroit.  Federal agents had been interrogating him with his consent and cooperation, until other agents rushed to the site and advised him of his Miranda rights, whereupon he refused further cooperation.

The provision applies to anyone who (1) has planned or carried out an attack upon the US or its allies, or (2) who is considered a member of al Qaeda or “an associated force”.  The Executive branch retains the ability to shift custody to civilian authorities if national security concerns dictate the move.

The complaints, as expected, from the usual suspects including the ACLU, Amnesty International, and Libertarians, decry that now the government will be able to “detain American citizens”, but I cannot find such a capability under my reading of the provision under sections 1031, 1032, and 1033 of the bill (S. 1867), other than those already mentioned in the two categories above.  In fact, US citizens and lawful resident aliens are specifically addressed in section 1032(b).

Two key ideas typically remain unmentioned in these discussions.  One, referring to US Code, Title 8, § 1481, is the question of the extent that citizenship can be retained by swearing allegiance to a foreign power, or in the face of egregious acts against the security of the country such as “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of [various sections of US Code , Title 18] by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.”  While not yet convicted, one can still make the argument that under conditions of warfare, which would include terrorism under these circumstances, detention by the military would be called for pending disposition of the case.

The second involves the question of what constitutes a lawful combatant, as so much of the complaints about the Bush administration’s handling of prisoners at Guantánamo (for example) revolved around how we were not treating the prisoners properly under the Geneva Conventions and the rights of ‘prisoners of war’.  The argument presented is that a purported terrorist should be treated as a criminal in a court of law, or as a combatant (the prisoner of war argument) if they were captured on a foreign battlefield.  The media neglect to mention (deliberately so, I believe) that many of the terrorists cannot be defined as prisoners of war since they violate the specific terms of a lawful combatant under the Conventions, which are (1) they must fall within a specific chain of command, with someone responsible for their actions; (2) they must wear or have “fixed, distinctive emblems” such as a uniform or some way to distinguish their membership in an armed force; (3) carry arms openly; and (4) obey the Law of Armed Conflict – the various internationally recognised laws and treaties (Hague, Geneva, &c) that govern the conduct of belligerent powers.  The terrorists in this Long War violate all of the provisions, and as such they are not defined as prisoners of war.  While we are enjoined to treat such prisoners humanely, we are not compelled to grant them the rights of prisoners of war, much less the rights of US citizens.

At any rate, the Senate bill will have to go to committee to resolve the differences between it and the House version, which had contained a similar provision about military custody until the language was removed in intensive ‘back channel’ lobbying by the White House.