John McCain has simply gone too far by sponsoring Senate Bill 3081: Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010. McCain has created a bill that is loosely worded and can be easily manipulated and abused. The victims of this bill are U.S. citizens, for McCain allows the possible suspension of their rights with this vaguely worded document.
This bill targets "unprivileged enemy belligerents," which is a group that is inappropriately defined. One of the conditions for becoming an unprivileged enemy belligerent is to have provided material support to terrorist groups. But material support is a term that can be used against nonprofit groups that unintentionally help "terrorist" groups with services. Another flaw in this bill is that it suspends American citizens' Fifth and Sixth Amendment rights. Picking and choosing what rights it can give to citizens should never be a power that the government should utilize. The final and most important defect in the bill is that there is room in it for conditions to be added that would not be fully disclosed at the time it is ratified. A loophole in the bill allows the president sixty days after ratification to determine any further terms under which someone could be detained.
The first problem is the way that an unprivileged enemy belligerent is defined. An unprivileged enemy belligerent is defined as anyone who has engaged in hostilities against the United States or its allies, has purposely and materially supported hostile acts against the United States or its allies, or was part of al-Qaeda at the time of capture.
The problem lies in the definition of material support, which could mean the giving of services to terrorist groups. Earlier this year an American non-profit group argued before the U.S. Supreme Court in Holder v. Humanitarian Law Project against the material support clause in the Patriot Act. This was the first case to challenge a portion of the Patriot Act in the Supreme Court. The material aid clause is written so broadly that this non-partisan group was entangled in its generalized definition of material support. The Humanitarian Law Project was providing human rights advocacy training to the Kurdistan Workers Party. The Humanitarian Law Project was training the group to reduce violence. Once the State Department flagged the Kurdistan Workers Party as a terrorist group, however, it made it a crime for the Humanitarian Law Project to train the group in such human rights advocacy. The Center for Constitutional Rights lawyer David Cole commented on the case and stated, "This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes."
A significant issue in the bill is that it allows American citizens to be detained without receiving their Miranda rights. The bill also takes away any Department of Justice funding for a lawyer in an Article III court. This means that anyone found guilty of the three conditions necessary to be an "unprivileged enemy belligerent" will be automatically tried in military court. Detaining someone without reading them their Miranda rights or without providing them a court-appointed attorney is a direct violation of the Fifth and Sixth Amendment. No person in America should be able to take away any of the rights that the Constitution provides.
The bill even contains a clause that allows it to become a law without full disclosure of its terms. McCain provides a loophole that allows someone to become a "High-Value Detainee" (the step before someone is classified as an unprivileged enemy belligerent). He lists five conditions for one to become a high-value detainee; three of them are identical to the ones that classify someone as an unprivileged enemy belligerent, and the remaining two conditions are the potential intelligence value of the individual and "such other matters as the President considers appropriate." The president has 60 days after the bill is ratified to determine what the regulations should be.
Although we live in times of war, the basic provisions in the Bill of Rights and in the Constitution should never be suspended for any reason. As citizens, the government provides us a service, for if there were no people then a government could not exist. We have certain terms and conditions that we can expect from our government that we do not expect to be violated. Because of all of its violations of the basic rights of citizens and the possibility that citizens will get trapped in its loose provisions, this bill should not exist. It is prime for governmental abuse, and quite frankly is scary.
Ashley Ford is an opinion columnist for The Cavalier Daily. She can be reached at a.ford@cavalierdaily.com.
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