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McCain and Lieberman's Nightmarish Detention Bill

One of Congress’s most notoriously hawkish duos, Sen. John McCain [R, AZ] and Sen. Joseph Lieberman [I, CT], recently introduced legislation in response to President Obama’s decision to try Umar Farouk Abdulmutallab, the Christmas Day airplane bomber, in a criminal court. Their proposal, which they are calling the Enemy Belligerent Interrogation, Detention and Prosecution Act, would empower the U.S. military to arrest anyone, U.S. citizen or otherwise, who is suspected of terrorist associations and detain them indefinitely, without right to a trial.

Here’s my analysis with links to specific sections of the actual bill text and a few excerpts of key sections. I invite your fact-checking.

Terrorist suspects would be given over to military custody for interrogation:

(a) Military Custody Requirement- Whenever within the United States, its territories, and possessions, or outside the territorial limits of the United States, an individual is captured or otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities, and who may be an unprivileged enemy belligerent, the individual shall be placed in military custody for purposes of initial interrogation and determination of status in accordance with the provisions of this Act.

People would have to be given over to the military within a “reasonable time” (undefined) of their initial arrest. Miranda rights would be specifically waived, denying the detainee a right to a lawyer and a right to refuse to cooperate:

(3) INAPPLICABILITY OF CERTAIN STATEMENT AND RIGHTS- A individual who is suspected of being an unprivileged enemy belligerent shall not, during interrogation under this subsection, be provided the statement required by Miranda v. Arizona (384 U.S. 436 (1966)) or otherwise be informed of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona.

Once in custody, suspects would be interrogated by a “high-value detainee interrogation group” to determine whether the person is, in fact, “an unprivileged enemy belligerent” according to any of thecriteria below:

(2) CRITERIA FOR DESIGNATION OF INDIVIDUALS AS HIGH-VALUE DETAINEES- The regulations required by this subsection shall include criteria for designating an individual as a high-value detainee based on the following: (A) The potential threat the individual poses for an attack on civilians or civilian facilities within the United States or upon United States citizens or United States civilian facilities abroad at the time of capture or when coming under the custody or control of the United States. (B) The potential threat the individual poses to United States military personnel or United States military facilities at the time of capture or when coming under the custody or control of the United States. (C ) The potential intelligence value of the individual. (D) Membership in al Qaeda or in a terrorist group affiliated with al Qaeda. (E) Such other matters as the President considers appropriate.

If there is any disagreement about a person’s unprivileged enemy belligerent according to the above criteria, the final determination goes to the President. Once determined to be an unprivileged enemy belligerent, a person, regardless of citizenship status, can be detained indefinitely, without trial, until terrorist threats against the U.S are determined to be over:

SEC . 5. DETENTION WITHOUT TRIAL OF UNPRIVILEGED ENEMY BELLIGERENTS . 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.

So far, the bill has been referred to the Senate Judiciary Committee. It currently has nine co-sponsors, including the newly-elected Sen. Scott Brown [R, MA]. We’ll update on this blog if it gets a hearing or a mark-up in the committee.