Senate Bill Allows Arrest of Americans by Military Anywhere

The Senate passed a war expenses appropriation bill on Thursday that appears to hold out the possibility that the military could be ordered to arrest and hold an American citizen anywhere in the world (including the US) without trial and indefinitely. Senator Lindsey Graham insisted that the move is necessary so that information can be extracted from just-arrested terrorism suspects without all that rigamarole about reading them their rights, etc.

There is no evidence that important and timely information has regularly been obtained by torture, so the whole premise of Graham’s position rests on facts not in evidence. If torture could defeat terrorism and insurgencies, the French would still be ruling Algeria. Moreover, there is no evidence that the US military is good at telling terrorists from non-terrorists. Many of those sent to Guantanamo were found to have been sold by the Taliban (a few Iraqi Shiites who had fled to Afghanistan to escape Saddam ended up at Guantanamo, even though the Taliban and al-Qaeda kill Shiites on sight).

Language was added to the bill at the last minute specifying that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.” But the language also says that the military can arrest US citizens anywhere, including the US. Promises that a provision against terrorism would be somehow limited and would not be used in criminal and other cases have been made before and usually violated. Moreover, since many (but by no means all) of our politicians are apparently a bit unbalanced (something about high office must attract a disproportionate number of people with too much of one chemical and not enough of another), you can’t tell which president will get to order the troops into action and why.

This militarization of police duties in the name of counter-terrorism is a dire threat to the rule of law in the United States, and clearly unconstitutional.

The aspiration in the Senate bill is not new. The Bush administration allegedly seriously considered sending the military to arrest the Lackawanna Five, Yemeni-Americans accused of having attended al-Qaeda training sessions in Afghanistan. That move, like the current National Defense Authorization Act, would violate the 1878 Posse Comitatus law, which forbids the use of troops for domestic law enforcement when civilian organs of state are available for this purpose.

We have seen with the misnamed PATRIOT Act, moreover, that once law enforcement has tools on the books, it typically does not stop at terrorism. The PATRIOT Act’s unconstitutional provision for warrantless wiretapping allowed the FBI to bust strip club owners in Las Vegas for bribing city council members, even though the bureau did not have the kind of evidence for wrong-doing that would have been needed to obtain a warrant. This was terrorism?

The point is that if you let the US military arrest Americans for terrorism, you probably are letting them arrest Americans for anything. Bradley Manning has been formally charged with aiding the enemy by releasing low-level State Department cables to Wikileaks. If you reposted one of those cables on the web or Facebook, is that treason? Could the military come after you for it? Would you also be in the brig and tortured via sleep deprivation, and in danger of being executed? (By the way, former vice president and unindicted felon Richard Bruce Cheney revealed to Iran and everyone else that Valerie Plame was an undercover CIA operative working to counter nuclear proliferation in Iran. That’s not “aiding the enemy”? But releasing some inconsequential cables is?)

Or what about civil disobedience tactics such as those on many of today’s college campuses and city squares, on the part of Occupy Wall Street? Couldn’t mayors just call in the military if these activities were construed as “terrorism”?

The ACLU explains that the current language of the amendment is frightening.

Since our Congress is now almost completely bought and paid for, it has been pushing weird acts that only benefit authoritarian politicians and some billionaire corporations recently, and which are wholly injurious to American liberties. Destruction of internet liberty is another cause apparently dear to the hearts of our plutocrats.

36 Responses

  1. “If torture could defeat terrorism and insurgencies, the French would still be ruling Algeria.”

    The above-cited statement is a bit of a non-sequitur. Actually, the French did win the Battle of Algiers largely through the use of torture. The 10th Paras used brutal torture and successfully obtained the information needed to locate and decapitate the leadership of various cells operating primarily out of the Casbah. That the French lost Algeria in 1962 had a lot more to do with strategic factors such as the French political situation and the stamina of the NLF than it did with the the tactical use of torture.

    • Bill, I suggest you are making a perceptual error. Just because the French original actions defeated the obvious guerrilla actions, didn’t mean that the hearts and minds of the oppressed were won over. In fact, the actions of the French military in that initial “victory”, may very well have moved the hearts and minds of many more people in the direction of opposition to French rule, so it created a tipping point, that is was only a matter of time before a simple costs / benefit analysis caused the then current French government to realize occupation wasn’t worth it, and in comes Algerian independence. No one campaign is the whole process. And that is the reason why the almost 535 idiots that now act as our representatives in Congress are extremely misguided in this latest insanity they are foisting on us.

      • Warren, the Battle of Algiers (January-March 1957) was not designed to win the “hearts and minds” of the Algerians. By the time of the Battle, few if any Algerians were inclined to support the French anyway, regardless of the 10th Para’s tactics. Thus, there were no “hearts and minds” to be won over. General Jacques Massu, commander of the 10th Paras, meant to decapitate the FLN terrorist leadership of the various cells, and through the use of torture, he was largely successful. This was a case of winning the battle but losing the war, not because of the battle tactics used, but because of larger, strategic factors at work.

        My point was that torture may be successful in certain tactical situations, but it is a non-sequitur to state that “If torture could defeat terrorism and insurgencies, the French would still be ruling Algeria.” No one that I know of has made the claim that torture can defeat terrorism and insurgencies. It has always been used in an attempt to gain tactical information, sometimes successfully, sometimes not. In my opinion, the French loss of Algeria was inevitable because of the French political situation at the time and because of the FLN’s persistence and strategy. In spite of a group of officers and pied-noirs almost mounting a coup d’etat against de Gaulle, the majority of the French no longer had the stomach for it.

        • Good point, but most Americans can’t tell the difference between “tactical” and “strategic”. “Pyrrhic” is really beyond them.

        • Bill, I guess you disagree with the idea the underneath the stated premise is always a major orientation; and, by the way, what do you have as evidence that the French military was not trying to win the hearts and minds of the people who had not yet shown an orientation to Algerian independence?

          Life has taught me that everyone has an overall objective to all their current actions; just like a process is a series of activities with an overall goal, while each activity in the process has its own separate goal.

          I am sure the underlying goal of suppressing to guerilla movement in Algeria was to discourage any future such actions from arising; but unfortunately the desire for freedom in many way outweighs all attempts at suppression, even through, as in the case of the USSR it may take 70 years to win out.

          And of course, there is the cases where the extreme myopia of leaders ends up producing responses that were never considered. Just as how Iraq turned out in the end.

  2. When combined with HR 3131, which would declare supporters of the Gaza flotilla to be terrorists, Alice Walker and other humanitarians could find themselves in Guantanamo indefinitely. link to govtrack.us

    • Kelly Ayotte, New Hampshire Senator, endorses Mitt Romney and introduced by Sen. Kelly Ayotte (R-N.H. the Defense Authorization bill would roll back torture prevention measures. Ayotte is Mitts guy.

  3. The historically interesting thing about this development is the people who are at first opposed.

    You would think the generals, admirals, diplomats and spooks would be at the forefront fighting for these powers, when in fact its the civilian authorities or facsimiles of, whose villainies & thievery by nefarious schemes and plots inadvertently puts power into the hands of the above.

    Eisenhower didn’t warn us about the Pentagon or the military taking over. He was pointing his fingers at plundering corporate/congressional cabal who were stupidly clearing & paving the path to tyranny, by destroying the republic, rule of law & constitutional barriers erected by infinitely better men and women.

    One day light bulbs are going to explode in the minds of the generals, admirals, diplomats and spokes. And Congress will no more be able to save themselves than they can save us.

  4. This is a frightening situation. We have iving in a nightmare in Mike Rogers County (R), the head of the Congressional Intelligence Committee, where there has been blatant corruption, civil right abuses – and even suffering break-ins, where there were incriminating documents were remove documents and attempted to be removed, I personally worry about the direction of our nation and the wisdom of our national leaders.

    If Rogers is any example of quality of national leadership this nation is in for a great many problems.

    The law is clearly meant to protect illegal activities than it is to protect Americans, once we lose our civil rights it will be near impossible to get them back. For us it has been a personal one, but American’s are teetering on the brink of finding themselves in a similar situation.

  5. It is not just that they (the congress and leaders in Washington) are bought and paid for Juan, some of the ‘authoritarian politicians’ are mired deep into corruption, and the ties extend beyond political party.

    People have been viewing our political parties like children view the outside world as black and white and one side good and one side bad, when in reality both sides are linked.

    As mentioned in my earlier post, for my kids and I we have been living a nightmare in Mike Rogers (R) county with linking extending to his closest of family friends and alliances – all because of information I knew, and those involved wanted suppressed. It has been a personal tragedy however, it is one that any American could face if they know the ‘wrong’ information.

    It is not only the “Plames’ or higher profile people who have been targeted.

  6. I can’t help but notice that America’s counter-terrorism efforts have been a whole heck of a lot more successful since we stopped this sort of thing.

    These people want to go back to Bush-era tactics? Absurd.

    • Joe, meet Bill (above.) Looks like you have stuff to talk about… Maybe you could conference in Jack Bauer.

      The purpose of torture is torture. The purpose of power is power. Pretending to national moral superiority or claiming survival necessity is simply BS.

      But then that’s pretty much the best that humans can manage, now isn’t it?

      • Read my post carefully, JTMcPhee, as your first attempt failed to register my point. The subject was the statement, “If torture could defeat terrorism and insurgencies, the French would still be ruling Algeria,” and I suggested it was a non-sequitur. Why? Because, as I stated, I know of no one who has made the claim that torture defeats terrorism and insurgencies. It is a tactic used to gain information, sometimes successfully and sometimes not.

        Your statement that “the purpose of torture is torture” is simply wrong. Torture was one of the primary tactics used to gain information that led to the French winning the Battle of Algiers. That they eventually lost Algeria was due to strategic factors that I discussed above. You must really learn the difference between tactics used to gain information and strategic factors that lead to victory or defeat.

        • Bill, I read and re-read your original statement, and then your later reply to Mr. Metzler which is where you added the explication about “No one that I know of has made the claim that torture can defeat terrorism and insurgencies.”

          Maybe it’s just my cloudy perceptions, but there seem to be a lot of people who make exactly that claim, or at least the claim that torture is one of more effective the ways to “cut the head off the snake.” I will maybe read up some more on the French-Algerian conflict, which might add some illumination about another corner of the futility of the great warrior violence that is so much of human behavior, but “we Americans” have the Phoenix program as one example of how successful torture, murder and decapitation, literal and political, can be in dealing with annoying Wogs and their petty insurgencies.

          It’s kind of all about what people value — power, money, glory, really complex tactics and strategies and doctrines and weapons and domination and “victory,” kindness, the chance that the species might survive for a few more millenia, among the many choices. What is the mission, again?

      • Without meaning to re-litigate the torture business (it was all in the past, right?), Bill’s rejoinder captures some important, not so subtle nuance. Still, most every thoughtful opinion/analysis I’ve ever read about torture concludes it is at best stupid and at worst counter-productive. Even for the immediate tactical needs of a commander in distress, it would tend to distract him from working with the the more objective facts and lead him into even deeper trouble.

        HOWEVER. All this misses an important political utility implied at above: it is simply how deeply and profoundly satisfying it is to somehow “get back” at someone who has gotten the best of you. In the wake of 911, who could deny the urge to break some knees just to get it over the psychological sense of helplessness and vulnerability?

        AND, if your group’s political positioning relies on harnessing the power of reactionaries and rednecks, being two-faced about all this is needed to tap into the righteousness of your base. Even if you know better, inflaming the common ‘folk has a mighty utility when it comes to mobilizing these people against all those people who read books and “think they’re smarter than we are”.

        • Travis Bickle your points are apt. It is not at all clear that torture “worked” in Algeria. This is a claim that does not stand up to scrutiny.

          This article by Darius Rejali, an expert on torture, discusses Algeria and concludes the French sucess was not due to torture:

          link to salon.com

          This link will take you to a two-part article, scroll down to the 6/18/2004 article for part one. The 6/21/2004 article at the top is part two.

          Together, they represent a well reasoned and well-informed analysis of the “value” or torture in general and in Algeria in particular.

          Rejali or this bill notwithstanding, torture is wrong, and illegal. The bill itself is clearly unconstitutional but whether or not the right-wing US Supreme Court agrees remains to be seen.

        • Joel Grant-Your statement, “It is not at all clear that torture “worked” in Algeria. This is a claim that does not stand up to scrutiny. This article by Darius Rejali, an expert on torture, discusses Algeria and concludes the French sucess was not due to torture,” itself does not stand up to scrutiny. Darius Rejali is well-known for his anti-torture stance (not a bad thing) and his skewing of evidence to support his position (not a good thing).

          Historians without an axe to grind (unlike Rejali), who have studied the Algerian War (including Algerians who supported the FLN), are unanimous in their conclusion that torture did indeed work in the Battle of Algiers and enabled the 10th Paras to locate and decapitate terrorist cell leaders. You can side with Rejali if you wish, but you place yourself squarely in opposition to all leading historians of the conflict.

      • JTMcPhee,

        If I’m understanding you correctly, you read my comment denouncing the use of Bush-era detention practices, on a thread about holding people in indefinite military detention, and concluded that I was writing a comment in support of torture (a noted Bush-era detention practice).

        That’s very odd.

    • Joe, meet Bill (above.) Looks like you have stuff to talk about… Maybe you could conference in Jack Bauer.

      What on earth are you talking about, and what does it have to do with what I wrote? Or with the subject of the post?

      This is just bizarre.

  7. As DSkousen alludes, much of these and other problems of over-reaction can be traced to the B&W viewpoint, which is exacerbated under the pressure of circumstances…..or the need to gain the support of people who do not have the perspective of the nuance that exists with most problems. ie, For any legitimate issue, there is going to be something to be said on both sides. (As far as the potential success of French torture in Algeria, it is hard to imagine a scenario where torture would led to a sustainable “relationship” with any person or group. That would be the equivalent to arguing that slavery works over the long run: its a case that can be made, but its awfully thin.)

    If tomorrow any of us were to find themselves sitting next to McCain etal for a long flight and able to have a non-polemically driven conversation, I am confident you’d find someone who was not stupid and really cared, as far as that goes. So, to take a breath and try to square things:

    GROUPS are part of the problem. There’s a political necessity of working with others to get things done or just to have an identity. From Jonesville to Iraqi torturers, you have normal people who are swept up by the group to do crazy things. If you’ve ever been to a major football rivalry you will have felt the force: The group gives us our identity, even outside a mob. For better or worse we are social animals. For anyone committed to any sort of career, much less a politician or a senior military officer, going against the organization is psychologically impossible, for all practical purposes. Groupthink is just the tip of this iceberg’s power.

    Your traveling compradre will talk about the need to “work from within the system.” He can, he will say, do more good to make things better/safer/saner by not passing things off to someone else. I suspect there were officers at the concentration camps who rationalized things along the same lines. What else can you do: the choice is to retire or start a revolution.

    “You can trust us” they will say. And they mean it. They will say these laws really can help keep us safe from AQ etal, and the above hand-wringing really is just silly, and they’re right as far as that goes. After all, what have we got to worry about with tracking software in our phones? Unless we have something to hide it’s very much in our best interest to do all this, and more. It isn’t as though YOU are some sort of criminal/terrorist, right?

    Of course, the problem with this is the disposition of select individuals and groups in power to abuse power. The odds of such power being held benignly and not abused over any length of time is nil.

    • I agree the chance is NIL. But the bill on rolling back any blocking of tortures was introduced by a heavy backer of Mitt Romney’s from N.H. Romney has many of the torture supporters on his staff, and Romney himself is in support of enhanced tortures.

      I probably should clarify when I wrote” The law is clearly meant to protect illegal activities” – this is referring to illegal activity by the politically connected in Washington D.C. and in our states.

      Peer group alliance within a profession; be the profession is in law, government, etc. in the background there is peer group bonding which does occur within aligned people. As far as speaking out and not going along, this has to do with the level on ‘moral judgment’ the individual has attained or developed.

      The next is the ability of the individual to speak out – meaning the method they feel they can use to speak out, who they should align with for protection should they speak out, or will they have to boldly go it on their own should they reveal a problem, corruption, wrong doing etc. In the latter case they may decide to speak out.

      The other event which happens within groups is the ‘bully’ or the manipulator will do is, they will edge out any individual they feel has integrity and bring in people into the group which can and will compromise. Forming a core group which is difficult to remove, next they will attach people they can use to carry out attacks on their ‘target’. ( the individuals the core group wishes to expel or silenced).

      In our family, my children and I have suffered deeply because of people willing to mob and align as cover-ups were instigated by corrupt parties.

      Torture is meant to send a message to others to be very afraid so opposition is suppressed – especially the enhanced Mitchell and Jessen tortures which were developed. These tortures were find conducted in Utah Prison of which, several the prison administers went on to abuse children within their own Mormon Church wards in Utah.

      Psychologists were removed from the positions within professional groups which did not agree with enhanced tortures, replacing them with ones which would. Agents within federal agency who spoke out, or did not agree with Mitchell and Jessen’s tortures were marginalized. Again this is part of the core peer group edging out people of integrity and is seen across the board in a multitude of arenas.

      • Good points. But what I’m thinking about is what I am assuming is merely a generally benign adoption of these capabilities, for the moment managed by presumably serious and competent people who have the strength to resist the temptation (or pressure) to use their power in a good system of cks and balances. (BIG CAVEATS, eh?)

        Remember that business a few yrs ago when INS clerks were looking up the coming and goings of celebrity passport holders? Of course, those were just worker bees on lunch break….

        The social psych research (Zimbardo, Milgram, etc, etc), done from the 50’2-early 70’s has been corroborated and extended (Cialdini), and is a pretty well formed/accepted body of knowledge at this point.

        Even as someone who works/reacts to the world independently, and knows how this hard-wiring works, its a sweaty sensation to feel the wave of power group processes washing over you at a megachurch, etc.

  8. Great bottom line question:

    How long will it take, given whatever checks and balances might exist, before these powers are abused? Not just abused in the way of unwarranted investigation of Quakers or the existing monitoring of Muslims by NYC police, but a systematic abuse for individual or group gain, ala Nixon, or worse?

    • Well, the FBI has already targeted animal rights activists as a special threat, and I have trouble believing they’d be so high up the enemies list if they hadn’t angered any number of corporations that do bad things to animals in the normal course of their businesses. So torturing animal rights activists will be a reward for some of the lobbyists out there. Logically climate activists face the same danger as a threat to the oil & coal industry. Which should one day prove, too late, that it’s a myth that global-warming deniers are the persecuted truth-tellers while the global-warming alarmists are liars bankrolled by a wealthy conspiracy. You know which group will get tortured by authorities first, if ever.

  9. Bluntly, the so-called civilian police forces in this country in large measure are already military in their structure, their behavior, and many other respects. Really, what’s the difference whether the military arrests you or the cops – the repressive outcome is effectively the same. I wish I had the insight to understand how to escape this fear-based, police-state mentality that we’ve constructed for ourselves.

  10. “Senator Lindsey Graham insisted that the move is necessary so that information can be extracted from just-arrested terrorism suspects without all that rigamarole about reading them their rights, etc.”

    Isn’t Senator Graham a JAG?!? Yes, he is – a member of the Judge Advocate General corps (reserve) and until recently, an INSTRUCTOR.

    He knows better – but apparently, politics overrides jurisprudence when you’re a Republican.

  11. Sinclair Lewis more or less predicted this military empowerment in his 1935 book “It Can’t Happen Here.” Very scary for all of us civilians.
    The militarization of police duties seems to have arrived also, i.e. the battle fatigues and weaponry of the police who broke up the OWS encampments, especially in L.A. 1,400 police to evict 200 people? We are in deep, deep trouble in this country.

  12. The law that started this insanity is Public Law 107-40 which is the bane of our existence and should not be ignored as it has been for 10 years. However, I understand, because it really is a near-perfect stealth war law.

    This law sorta-declared war against enemies to be named later. (Now, you don’t think lizard-brained politicians would take advantage of that?)
    Bush named al-Qaeda and the Taliban so as to invade Afghanistan.
    Obama named al-Qaeda ‘affiliates’ so as to invade everywhere else.

    The goal for the US military in this sorta-war was set as, get this, the prevention of future terrorism.
    Evidently, our victory parade will occur once the US military has forever prevented all future terrorism by all future enemies.
    Let’s plan for 3 pm, then, shall we?

    The MIC uses this state of ‘continuous war’ to scare the sheeple, suppress the angry who gather in parks to complain, and to subjugate those who live where there are yummy resources to steal.

    The Patriot Act brought this insane and DAFT war home to the Homeland. This new Senate legislation will bring it home to you.

    You are a potential future terrorist.
    There are millions of Americans being paid to find and defeat future terrorists and who want bonuses and promotions and awards.
    You do the math.

    DAFT – the Defense against Future Terrorism
    (because we don’t use MIC-terms like GWOT or WOT.)

    I suggest strongly that we end this insane DAFT war before it ends us.

  13. This bill is insane, in opposition to the Constitution, and counter-productive for the very outcomes these idiots in Congress claim to desire. But I suggest we all consider that they do represent us, in that they are incapable of voting in laws the majority of their constituents don’t accept. Spirit to spirit communication prohibits government officials from acting outside the contexts used by the majority of their constituents. So this several decade old decline in morality and reasonable assessments is a direct outcome of significant decline in the morality, feelings capacity, and reasonable thinking in the majority of Americans, and not just in their elected officials and business leaders.

    Just take Twitter for example. It is totally irrational to assume you are communicating any one point with sufficient clarity to reveal a truth when you limit yourself to 140 characters. So Twitter wouldn’t be so popular, unless most intelligent Americans, who are the people who use Twitter, have given up any need to be clear about their views.

  14. Reading them their “rights?” Oh Juan, you’re sooo yesterday. That constitutional `thang’ about due process – how quaint. Get with the program, prof: Torture is oh, so much more macho.

    More seriously, I would not have batted an eyelash had this cockamamie idea been proposed during Dubya’s time. Maybe he’s saving his bullets for a bigger political battle down the road but frankly, I’m disappointed in Obama’s apparent acquiescence. We know damned well that this sort of approach will be heartily endorsed by the folks competing for the GOP presidential nomination.

    Sigh.

  15. I haven’t read the bill itself, so I’m a bit uncertain of this, but everything I have read says that the bill requires the military the “hold” suspected terrorists and I have not seen anything saying that it gives military any actual arrest powers in the U.S. itself. The issue would be to whom the FBI turns said suspects over to after they, the FBI, makes the arrest. The difference between “hold” and “arrest” is very significant, and everything I have seen says “hold.” Your post here is the first time I have seen it posed as giving “domestic arrest” power to the military.

    Glenn Greenwald discussed this in a post recently, and he repeatedly referred to military custody and said that this bill essentially formalizes practices which are already in use by our government. He cited the Padilla case where the man was held in military custody, but he was arrested (iirc) by U.S. Marshall Service.

    • I think I would rather be “arrested” than “held”. Arrested implies some sort of trial at some future date while held implies “incommunicado” or “indefinitely” or simply “held without charges”. This kind of law is scary but predictable. I remember not so long ago, when people said America (including my home and native land) was heading for a police state, they were considered loonies. Now a well respected university professor implies the same thing on a widely read blog. I guess that’s progress of some sort.

      • Very good Yusuf. Your point adds optimism to my life. As more and more people express clarity about our current direction, we move closer and closer to recognizing the error of our ways, and beginning to seek a solution; thereby eventually stopping our current implementation of “Animal Farm”.

  16. I don’t understand the comments here about whether torture works or not. When the French military attempted to use torture to ferret out the people behind the bombings, they wanted to stop the bombing, AND they wanted to keep Algeria as a French colony. If through torture they temporary stopped the bombings, but latter had to give Algeria independence, then THE TORTURE DIDN’T WORK. No temporary solution ever works, only permanent solutions work; each permanent solution being an outcome that remains in place for an extended period of time.

    Which is why any one, like the idiot Senator Graham, who says tortures in renditions and Guantanamo worked is clearly demonstrating they are a liar or quite stupid.

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