This post is regarding the recent passage of Levin-McCain detention bill as part of the 2012 National Defense Authorization Act. It's a continuation of a conversation started on Facebook. I wanted to respond in more detail than a comment on a status update would allow.
The most controversial aspect of the new legislation is that authorizes "the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world" (This quote and the others used in this post are all taken from Greenwald's analysis here, unless otherwise noted.) As Greenwald notes in his first point regarding the myths surrounding this bill, this is not new:
... because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). That’s why this bill states that it does not intend to change the 2001 AUMF (even as it codifies far broader language defining the scope of the war) or the detention powers of the President, and it’s why they purposely made the bill vague on whether it expressly authorizes military detention of U.S. citizens on U.S. soil: it’s because the bill’s proponents and the White House both believe that the President already possesses these broadened powers with or without this bill
Of course, when Greenwald says that the bills proponents believe they have the powers outlined in this bill, he's speaking in a de jure sense; that is, as a matter of law, they believe they have the power (as in 'legitimate authority') to subvert or ignore due process. In a de facto sense, of course, they have the power (as in 'ability') to do this because they've already been doing it, for as long as the Guantanamo Bay detention facility (et al) has existed. This latest outrage is the same as the old outrage.
Some have suggested that this is new insofar as it allows for the indefinite detention of
US citizens without due process. But this isn't new either. This is because of the nature of due process (specifically in terms of habeas corpus). Any rights an individual may have (in this context), regardless of his or her actions, affiliations or citizenship, are contingent upon his or her ability to assert and argue for those rights in court. If you are a prisoner held without due process, it doesn't matter who you are or what they do to you--you have no rights, only whatever privileges your captors deign to grant you. The right to due process is a sort of gateway right through which any other rights must pass, in order to be rights at all. Once that gate is closed, a person on the other side is in principle no different than a kidnapping victim or hostage.
Also, once the right to due process is refused to some (even 'Just the Scary People'), it's refused to all. That's because without some kind of impartial review to determine who's scary and who's not, that distinction is based not in law but merely at the discretion of those in power. In this instance, US citizens have been subject to indefinite detention without trial for many years already because, once due process was set aside for the Very Scary People, there been no way for a US citizen to challenge the legitimacy of his or her detention, to argue that he or she wasn't Scary. Without due process, the only thing that keeps any one person out of Guantanamo Bay--regardless of citizenship--is not a law or a right, but the fact that no one in power feels like putting you there.
When it comes to the Eternal War on Terrorism, the rule of law was discarded years ago. You can see this in for example the completely arbitrary way various cases have been handled over the years. John Walker Lindh (an American citizen) was tried and convicted. The Tipton Three (British citizens) were held for two years then released at the behest of the British government. The decisions on who has been released and who has been kept, who gets a trial and who gets thrown down the metaphorical hole, have been matters of diplomacy and public relations, never law.
This latest affront on civil liberties is nothing new. It's not one further slide down a slippery slope. In terms of the law, as a matter of principle, we're already at the bottom of the hill. Due process is not something you whittle away at, bit by bit, over time. As a society, you've either got it or you don't. It's not something you can take away from 'just the Bad People', because it's the way you determine who's Bad and who's not. For us to return to the rule of law, we would need to understand what the right to due process really means, not just for those in Guantanamo Bay, but for everyone. However, as long as the American right continues to be able to appeal to ignorance and fear, to squeal that supporting the rule law is tantamount to supporting terrorism, then there will be no political will, among either Republicans or Democrats, to do anything about it. The 2012 National Defense Authorization Act is not a new problem, just a reminder of an old one.
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