Coming Soon: The Indefinite Detention of American Citizens

By Matt Taibbi, Rolling Stone

10 December 11

here's some disturbing rhetoric flying around in the debate over the National Defense Authorization Act, which among other things contains passages that a) officially codify the already-accepted practice of indefinite detention of "terrorist" suspects, and b) transfer the responsibility for such detentions exclusively to the military.

The fact that there's been only some muted public uproar about this provision (which, disturbingly enough, is the creature of Wall Street anti-corruption good guy Carl Levin, along with John McCain) is mildly surprising, given what's been going on with the Occupy movement. Protesters in fact should be keenly interested in the potential applications of this provision, which essentially gives the executive branch unlimited powers to indefinitely detain terror suspects without trial.

The really galling thing is that this act specifically envisions American citizens falling under the authority of the bill. One of its supporters, the dependably-unlikeable Lindsey Graham of South Carolina, bragged that the law "basically says … for the first time that the homeland is part of the battlefield" and that people can be jailed without trial, be they "American citizen or not." New Hampshire Republican Kelly Ayotte reiterated that "America is part of the battlefield."

Officially speaking, of course, the bill only pertains to:

"... a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners."

As Glenn Greenwald notes, the key passages here are "substantially supported" and "associated forces." The Obama administration and various courts have already expanded their definition of terrorism to include groups with no connection to 9/11 (i.e. certain belligerents in Yemen and Somalia) and to individuals who are not members of the target terror groups, but merely provided "substantial support."

The definitions, then, are, for the authorities, conveniently fungible. They may use indefinite detention against anyone who "substantially supports" terror against the United States, and it looks an awful lot like they have leeway in defining not only what constitutes "substantial" and "support," but even what "terror" is. Is a terrorist under this law necessarily a member of al-Qaeda or the Taliban? Or is it merely someone who is "engaged in hostilities against the United States"?

Here's where I think we're in very dangerous territory. We have two very different but similarly large protest movements going on right now in the Tea Party and the Occupy Movement. What if one of them is linked to a violent act? What if a bomb goes off in a police station in Oakland, or an IRS office in Texas? What if the FBI then linked those acts to Occupy or the Tea Party?

You can see where this is going. When protesters on the left first started flipping out about George Bush's indefinite detention and rendition policies, most people thought the idea that these practices might someday be used against ordinary Americans was merely an academic concern, something theoretical.

But it's real now. If these laws are passed, we would be forced to rely upon the discretion of a demonstrably corrupt and consistently idiotic government to not use these awful powers to strike back at legitimate domestic unrest.

Right now, the Senate is openly taking aim at the rights of American citizens under the guise of an argument that anyone who supports al-Qaeda has no rights. But if you pay close attention, you'll notice the law's supporters here and there conveniently leaving out those caveats about "anyone who supports al-Qaeda." For instance, here's Lindsey Graham again:

"If you're an American citizen and you betray your country, you're not going to be given a lawyer ... I believe our military should be deeply involved in fighting these guys at home or abroad."

As Greenwald points out, this idea - that an American who commits treason can be detained without due process - is in direct defiance of Article III, Section III of the Constitution, which reads:

"No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

This effort to eat away at the rights of the accused was originally gradual, but to me it looks like that process is accelerating. It began in the Bush years with a nebulous description of terrorist sedition that may or may not have included links to Sunni extremist groups in places like Afghanistan and Pakistan.

But words like "associated" and "substantial" and "betray" have crept into the discussion, and now it feels like the definition of a terrorist is anyone who crosses some sort of steadily-advancing invisible line in their opposition to the current government.

This confusion about the definition of terrorism comes at a time when the economy is terrible, the domestic government is more unpopular than ever, and there is quite a lot of radical and even revolutionary political agitation going on right here at home. There are people out there - I've met some of them, in both the Occupy and Tea Party movements - who think that the entire American political system needs to be overthrown, or at least reconfigured, in order for progress to be made.

It sounds paranoid and nuts to think that those people might be arrested and whisked away to indefinite, lawyerless detention by the military, but remember: This isn't about what's logical, it's about what's going on in the brains of people like Lindsey Graham and John McCain.

At what point do those luminaries start equating al-Qaeda supporters with, say, radical anti-capitalists in the Occupy movement? What exactly is the difference between such groups in the minds (excuse me, in what passes for the minds) of the people who run this country?

That difference seems to be getting smaller and smaller all the time, and such niceties as American citizenship and the legal tradition of due process seem to be less and less meaningful to the people who run things in America.

What does seem real to them is this "battlefield earth" vision of the world, in which they are behind one set of lines and an increasingly enormous group of other people is on the other side.

Here's another way to ask the question: On which side of the societal fence do you think the McCains and Grahams would put, say, an unemployed American plumber who refused an eviction order from Bank of America and holed up with his family in his Florida house, refusing to move? Would Graham/McCain consider that person to have the same rights as Lloyd Blankfein, or is that plumber closer, in their eyes, to being like the young Muslim who throws a rock at a U.S. embassy in Yemen?

A few years ago, that would have sounded like a hysterical question. But it just doesn't seem that crazy anymore. We're turning into a kind of sci-fi society in which making it and being a success not only means getting rich, but also means winning the full rights of citizenship. I hope I'm wrong, but I don't see this ending well.