Posted on 03/10/2010 8:49:16 AM PST by AuntB
So, I thought for sure that this had to be misinterpretation by liberals at best, or a downright lie at worst. They lied about the removal of the writ of habeus corpus for detainees, after all, claiming that it applied to all Americans. So, before even reading the bill, I knew that the reports of McCain writing a bill that would call for the indefinite detention of American citizens who are labeled unlawful enemy combatants were incorrect. It was just the liberals hyperventilating yet again. Right?
Well, now I’m not sure. While it still may be nothing to blink at in the end, I find one provision in this bill – to paraphrase Chief Justice John Roberts – very troubling.
The passage in question from the bill (emph. mine):
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.
Uhh, a quick reading of the fifth and sixth amendments shows that the provision about holding Americans (civilians, anyway) in this manner is clearly unconstitutional. I had a difficult time at first understanding why McCain would even write this. The man may not be a young and charming constitutional law professor, but I would guess he knows the document well enough. He knows this bill doesn’t have a chance of passing, at least not with the indefinite detention provision as written. So I wondered, “why even waste time writing that part?”
Then I remembered that McCain is being challenged by former Arizona Congressman J.D. Hayworth. A Republican, Hayworth has used his campaign website to take McCain to task over his terrorism cred:
But John McCain wants Guantanamo Bay shut down and terrorists moved to the U.S. for trial. J.D. Hayworth supports the mission at Guantanamo Bay and thinks it would be both a mistake and an abomination to award enemy combatants and other terrorists the rights enjoyed by American citizens.
John McCain also wants to tie the hands of our military interrogators by banning enhanced interrogation techniques. J.D. Hayworth recognizes the importance of giving our professionals the tools they need to get the job done. At least four major 9-11 style terror attacks were prevented thanks to information gathered using these techniques, and countless lives were saved.
McCain does indeed support the closure of Guantanamo and is against waterboaring. So this is probably not so much a bill that McCain expects to see passed, but more of a “look at me, I’m strong on terrorism” bill. Yet, I’m not sure that McCain needs to pander to the uber-hawks. McCain has generally shown his support for anti-terrorism measures and missions. The ones that are not completely insane, anyway, like waterboarding. I also think that McCain has the intelligence to know that the “not-in-my-backyard” whining by his colleagues toward bringing terrorists to a prison on the mainland is mostly a non-issue.
McCain has spent his career being the America first guy, and most voters recognize that. Certainly Arizona voters, do, or else he would have had more serious challengers over the years. So why is McCain panicking now?
Well, it doesn’t help that there is a strong and vocal “keep them in Gitmo and use whatever measures are necessary to extract information” crowd out there. Also, Hayworth will have plenty of material to use from 2008. You know, the election where Barack Obama was more hawkish than McCain about combating terrorism in the Pakistan tribal region. Let me repeat myself. The Democrat was more hawkish than the Republican on a foreign policy issue. Hayworth will only need to display a few clips from the debates showing McCain getting flustered about upsetting Pakistan if he wants to rally the uber-hawks at McCain’s cost.
So, while I think that McCain’s record speaks for itself most of the time, I can see why he would fear losing some voters, given some of his votes and statements in recent years. That said, I think a provision that would allow the government to hold American citizens until “the end of hostilities” (whenever that is in a war planned around a concept) goes too far. I think a “true conservative” like J.D. Hayworth would agree, given that he will most likely have the support of the Constitution citing tea party crowd. Unfortunately for McCain, this is just something else that Hayworth will now be able to hold over his head.
Quite apart from it being an election year, I am saddened to see that the Senator would go this far to try and pander to the conservative base, most of whom I would guess (and hope) would themselves have a problem with the provision. Since I’ve followed politics, I’ve liked John McCain more than many other politicians. I may disagree with him on some issues, but ultimately I’ve thought of him as a man of principle. As is highlighted by his opponent, he has been against torture being applied to detainees, even when it hasn’t been popular. He has remained committed to seeing Gitmo closed, and that certainly isn’t popular. Heck, even liberals will give him support at times. Finally, he’s likable, which isn’t something a lot of politicians can say these days.
Amongst the Republican candidates, he was my top choice for the nomination, and I would have been happy to see him as President. But I may have to review my support of him if he would write a provision like Sec. 5, whether or not it’s an attempt to pander to his party’s base. A politician who actually respects the constitution would not even think about it.
Senator McCain, an explanation, if you would.
Uh, no.
I thought this could only be done under Martial Law?
Does this provision apply on American soil, or only overseas?
McCain/Kerry F the POWS/MIAS
McCain/Feingold F free speech
McCain/Kennedy F American Sovereignty
McCain/Gang of 14
McCain/Keating 5
McCain/Terrorist Bill of Rights
McCain/Gun Grabber
McCain/Does not like tax cuts
More? TARP
“Does this provision apply on American soil, or only overseas?”
The passage of the bill cited in the article doesn’t really say.
“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.”
Unless I’m misreading the article, Mr. Merritt considers water-boarding “insane.” Perhaps he also winces at the thought of the dreaded “comfy chair!”
We already have precedent for this with the internment of Japanese who were American citizens in ww2. I don’t know how FDR got around the constitution on that one, but around it he got and with near full support of the citizenry.
As well as the dreaded soft cushions.
from my own reading of it, it appeared less than clear in it's definitions of to whom, and when, the provisions would apply. It looked to potentially have all kinds of loosy-goosy wiggle room *interpretation* apps.
The definitions needed tightening. As it was, it did appear clear enough that it could be used against citizens, when they were allied with enemies. The trouble is, we suppose, it would be a simple matter to just declare someone an enemy of the State under the provisions...then off to the Gulag you go...
The English movers-and-shakers were bad about tossing someone they didn’t like in gaol (jail, the Tower) then losing the key.
The Framers decided that wouldn’t happen here, so they formalized the right to a writ of habeus corpus (`bring forth the body’) and the right to a speedy trial.
The Sedition act under Adams showed what happens when the party in power decides to punish its political enemies; now
McCain seeks to overturn 200 years of American jurisprudence.
The libertarians must be steaming over this, as well they (and we) should, and anyone who has sworn an oath to defend the Constitution.
These kinds of articles are very annoying when they do not give the title or number of the bill, so you can look them up and read them for yourself.
Does that mean those of us who post our thoughts on FR?
McCain and others supported that one. It gave carte blance to the President.
'Domestic violence, incident, epidemic,' etc.. :(
'Major public emergencies; interference with State and Federal law ‘‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.— (1) The President may employ the armed forces, including the National Guard in Federal service, to—
‘‘(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that—
‘‘(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
‘‘(ii) such violence results in a condition described in paragraph (2); or
‘‘(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2).
‘‘(2) A condition described in this paragraph is a condition that—
‘‘(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or'
Didn’t Lincoln do this?
Does the President have the authority to do this? I couldn;t see anything in the Constitution which would allow it.
Reading McCain’s bill, there is nothing in there which would prevent a tyrannical President from seizing American citizens and imprison them without due process of law indefinitely and under vague circumstances.
Keep in mind that the Supreme Court upheld the WW II detentions of Japanese Americans and other US citizens of questionable loyalty. In war time, the Constitution permits measures that would be prohibited in times of peace.
If you read the actual words of the 4th and 5th amendments, you'll see that detention without formal charges (habeus corpus denial) is not really covered. Meanwhile, back in the main body of the Constitution:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Art. II Section 9.
This seems to be for those caputured while engaged in hostilities against the US and/or it's allies. At least in spirit, the fifth amendment's exemption:
"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;"
would seem to apply. Why should terrorists and illegal combatants (even a rebel within the US is a legal combatent if they wear a uniform or other identifying items, and are part of a chain of command) have more rights than members of our own military and militia forces?
Could it be abused? Sure, but someone willing to do so isn't going to need such a law to perpetuate such abuses.
Not according to Article II Section 9.
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