SB 1867

It's been easy to miss, but this year's Defense Appropriations Bill includes some language that has civil libertarians in an uproar. See if you can figure out what's wrong with this section:

SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
(a) CUSTODY PENDING DISPOSITION UNDER LAW OF WAR.—
(1) IN GENERAL.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.
(2) COVERED PERSONS.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined
(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

So far, it seems almost reasonable — military detention for terrorists, right? There are a couple of little problems, though. First, there is no burden of proof involved. An accusation is enough to justify detention indefinitely, with no right to anything resembling a trial. More importantly, perhaps, it authorizes the military to exercise police powers within the borders of the United States, thereby overturning the Posse Comitatus Act of 1878 — but stay tuned for the real kicker:

APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—
(1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

On first reading, you might think US citizens are exempt but, as the ACLU has pointed out, the fact that there is no requirement that the military detain citizens without trial (or even a grand jury hearing) does not mean that the military cannot choose to do so — nor that the President cannot order the military to do so. Remember, all that is necessary is an accusation — no actual evidence is required.

Currently, the bill is in the hands of a Conference Committee to reconcile House and Senate versions, but there is no reason to believe that committee will do anything to ease civil liberties concerns. An attempt to amend the Senate bill to change the language failed. Our President has threatened a veto — not because he doesn't think he ought to have the powers of a military dictator, but because he sees other sections of the law as an attempt by Congress to micromanage the so-called "war on terror." Violations of roughly half the Bill of Rights don't seem to bother him.

George W. Bush began the campaign to suspend the right of Habeus Corpus. Barack Obama has continued it. Somehow, I can't see Mitt Romney or Newt Gingrich sacrificing any executive powers if one of them becomes our next Commander in Chief.