As Usual, the Onion Was There First

From the famous Onion 9/11 issue, this seems amazingly precient considering Senator McCain's proposed law to allow the President to indefinitely detain just about anyone he thinks might be a terrorist

U.S. Sen. John McCain (R-AZ), one of Congress' decorated war veterans, tried to steel the nation for the possibility of a long and confusing conflict.

"America faces a long road ahead," McCain said. "We do not yet know the nature of 21st-century warfare. We do not yet know how to fight this sort of fight. And I'll be damned if one of us has an inkling who we will be fighting against. With any luck, they've got uniforms of some sort."

"Christ," McCain continued, "what if the terrorists' base of operation turns out to be Detroit? Would we declare war on the state of Michigan? I suppose we'd have to."

Michigan was an interesting choice -- I wonder if they knew at the time the prominence of Muslims in Michigan or if it was just a random choice?  Certainly, though, they had McCain nailed.

I mentioned earlier that maybe somewhat different rules of due process were required when the enemy is not wearing, you know, uniforms.  Again, the Onion was first, from the same article

Secretary of Defense Donald Rumsfeld said the war against terrorism will be different from any previous model of modern warfare.

"We were lucky enough at Pearl Harbor to be the victim of a craven sneak attack from an aggressor with the decency to attack military targets, use their own damn planes, and clearly mark those planes with their national insignia so that we knew who they were," Rumsfeld said. "Since the 21st-century breed of coward is not affording us any such luxury, we are forced to fritter away time searching hither and yon for him in the manner of a global easter-egg hunt."

  • Russ R.

    The Onion has made itself hilarious by pointing out what is obviously true but borderline unmentionable.

  • Matt

    I don't much like this new bill on indefinate detention of terrorists either, but since you bring up WWII here I will make one note for perspective.

    Durring WWII operating under the Geneva Convention, the policy of the allied forces was that a non-uniformed combatent could be executed in the field on the agreement of any two officers. If two raw leutenants decided you were an illegal combatent, you would be shot.

    This is actually allowed under the Geneva Convention. The purpose of this is to prevent the whole sale slaughter of civilian populations by discouraging countries at war from hiding combat troops among civilians.

    I think an argument can be made that excecution with basically no due process is worse than indefinate detention.

  • Mark

    The power of the executive to declare someone an enemy combatant is clear. Always has been. Always will be. Anyone who denies this has a poor sense of history. Washington, Jefferson, Lincoln, Roosevelt all have used this power in one form or the other. I guess we should be chiseling down Mt. Rushmore.

    In our country we are fortunate that this power has not been widely abused. While there remains a chance that in the future some tyrant will use the opportunity to abuse this power, in my opinion, this is a small risk, and the national security benefits that are gained far outweigh its cost.

  • me

    In the last ten years, there have been so many atrocious terrorist attacks on the US that we have had to keep them secret (well, excepting the ones the FBI instigated, because those kind of count less). Clearly, under such terrible threat, all reasonable people agree that rights and freedoms must be temporarily suspended during the course of the emergency! Anyone who thinks otherwise must not be a patriot, and quite probably a terrorist themselves.

    It is entirely reasonable for our masters to sink the GDP into prevention of more attacks, it's not like the US has other problems.

    Note to self - the script here is so incredibly corny, I've always wondered how people in the Banana Republics of yore fell for it. I wonder no longer.

  • Mark

    And what "rights and freedoms" have been suspended, even temporarily? I find it ridiculous that anyone can make such a claim.

  • Ted Rado

    I imagine that it will be awhile until the best way to deal with terrorista shakes out. In the meantime, these sort of debates will continue (which is a good thing). There is no simple answer.

  • IGotBupkis, Sailing the Economic Seas Betwixt Scylla And Charybdis

    The following response from someone I know with a strong legal background might be of some interest:
    ======================================================================
    Detention certainly was part of the AUMF. Ex Parte Quirin said you could kill US citizens captured in the US who were enemy belligerents

    http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=317&invol=1#44

    If you can kill them, surely you can detain them?

    And Congress could suspend Habeas for certain enemy belligerents:

    http://volokh.com/archives/archive_2008_06_08-2008_06_14.shtml#1213294259

    Bottom line seems to me to be this: Enemy belligerents captured abroad, even if US citizens, should be able to be detained wherever we want.

    http://nooilforpacifists.blogspot.com/2008/06/epstein-etc-about-boumediene.html

    Still, a closer question is enemy belligerents captured in the United States. Habeas might still be available:

    http://nooilforpacifists.blogspot.com/2008/06/modern-major-general-morphs-into-lawyer.html

    But, even if it were, I would think there would be broad deference to the Executive Branch in individual cases.

    http://www.lawfareblog.com/2011/06/david-remes-on-the-d-c-circuit-2/

    ...(snip)...
    I think the President has a lot of discretion on how to handle such issues. See Article II, Section 2, clause 1.
    =========================================================
    My own personal response (not claiming any legal background here) tends to the following:

    Internal Belligerents (i.e., "citizens") captured abroad I grant is a fuzzy area, and seems to fall under the Law regarding "treason", offhand.

    Internal Belligerents captured inside the USA seem to me as though they should have the same rights as anyone else -- it hardly seems reasonable to claim that the Founding Fathers, who themselves were "internal belligerents", would have outlawed what they did or made exceptions for the treatment of people under the Law acting as they acted.

    As Jefferson is quoted as saying "From time to time the tree of Liberty must be refreshed with the blood of patriots." That hardly sounds like someone willing to bend The Law against such people.

    And if the USA is generating that many of them that they represent a real, true threat, it's time to look at what the USA is doing in the first place, not throwing them in a hole and putting a cover over it...

    ..and:

    your example largely argues for charging them under the concept of treason, which I have no problem with. If a US Citizen is acting against US interests in the USA, then they are quite possibly traitors who should be treated as such. And yes, I could see how McVeigh could arguably be classed as a traitor. The line between patriot and traitor often lies with which side wins.

    THAT seems in line with the Constitution, which, IIRC, does actually ack the idea of treason quite clearly.

    If you treated them as traitors, then I can deal with that, but I'm not so sure that holding someone indefinitely and without either council or without letting people know they are being held seems within acceptable limits, and likely lies outside of how the Founders would have treated traitors.

    Probably be interesting to go back and look into what happened to any (if there were any) who were found to be traitors in the first 25-odd years of the nation. Also be interesting to look into the letters of the Founders with regards to what they thought about Benedict Arnold and what they would have had done with him had he been caught.

    How did Washington act with regards, for example, to the Whiskey Rebellion? How did he treat them, both publicly and in his own private correspondence? What did the others of the FF's have to say about this action and how the perps should be treated?

    So I will extend my ideas of what someone is doing as far as overt acts against the interests of the USA as falling under the rubric and historical law regarding traitors (the very fuzzy part being that we both know that description alone would allow a Green Zealot to nominally classify a serial polluter as a traitor, which is clearly NOT what is honestly and rationally meant by the word "traitor" -- so it needs some serious firming up where The Law stands).

    I believe one key difference would be the intent of the actor, a fuzzy area nominally. Is their intent that the current government is unlawful and acting outside the bounds of its legal structure (and that does include possible issues with self-defined laws by the government itself as to what is "legal" for them to do)? Are the actions being taken to strike at the Government, particularly in response to what is perceived by the individual/group as a specifically unlawful action?

    Or is it acting explicitly to promote the benefit and welfare of an organization, or an idea, largely external to the US citizenry?

    This helps make a distinction between a Patriot and a Traitor. Acting against your government is acceptable by the citizenry of the USA -- this is a clear distinction allowed for by the Founders, for the sheer and simple reason of Madison's Federalist 46 exhortation of the citizen militia and its purpose. It's also suggested implicitly by Jefferson's "Tree of Liberty" quotation.

    Note that someone who is a Patriot can be tried, convicted, and even executed (potentially by military tribunal, as historical laws regarding treason define). I would not argue that the actions against Patrick Henry constituted any sort of war crime, as I understand them. But it should certainly be done above board, in visible sight, and with suitable legal council on the part of the Patriot. Not in some Star Chamber proceeding and without the friends and family even aware of the status of the potential unperson.

    THAT is something that citizenship DOES involve and absolutely require.