New McCain Bill: American Citizens May Be Held Without Charge During Hostilities

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.

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.

Before the US entered WW I, the German ambassador to the US scoffed at the idea that the US would declare war on Germany by warning that a million German Americans would riot. The Secretary of State, Robert Lansing, replied that would not prevent a declaration of war as we had at least a million and one lamp posts.

As it happened, although there were German spy rings and incidents of sabotage, WW I produced a wave of patriotic fervor among German Americans.

During WW II, at least 11,000 Americans of German ancestry and many Italian Americans were interned. Most were adherents of the pro-Nazi Bund and express supporters of Italian fascism.

A number of Japanese and German spy rings were silenced by the internments. In addition, the risk of sabotage was reduced.

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