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December 23, 2011
THUD OF THE JACKBOOT
by Alexander Cockburn
Too bad Kim Jong-il kicked the bucket last weekend. If the divine hand that
laid low the North Korean leader had held off for a week or so, Kim would
have been sustained by the news that President Obama is signing into law a
bill that puts the United States not immeasurably far from the Democratic
People’s Republic of Korea in contempt of constitutional protections for its
citizens, or constitutional restraints upon criminal behavior sanctioned by
At least the DPRK doesn’t trumpet its status as the last best sanctuary of
liberty. American politicians, starting with the president, do little else.
A couple of months ago came a mile marker in America’s steady slide
downhill towards the status of a Banana Republic, with Obama’s assertion
that he has the right as president to order secretly the assassination,
without trial, of a US citizen he deems to be working with terrorists. This
followed his betrayal in 2009 of his pledge to end the indefinite imprisonment
without charges or trial of prisoners in Guantanamo.
Now, after months of declaring that he would veto such legislation, Obama
has now crumbled and will soon sign a monstrosity called the Levin/McCain
detention bill, named for its two senatorial sponsors, Carl Levin and John
McCain. It’s snugged into the 2012 National Defense Authorization Act.
The detention bill mandates – don’t glide too easily past that word - that all
accused terrorists be indefinitely imprisoned by the military rather than in
the civilian court system; this includes US citizens within the borders of the
United States. Obama supporters have made strenuous efforts to suggest
that US citizens are excluded from the bill’s provisions. Not so. “It is not
unfair to make an American citizen account for the fact that they decided to
help Al Qaeda to kill us all and hold them as long as it takes to find
intelligence about what may be coming next,” says Senator Lindsay Graham,
a big backer of the bill. “And when they say, ‘I want my lawyer,’ you tell them,
‘Shut up. You don’t get a lawyer.’” The bill’s co-sponsor, Democratic senator,
cosponsor of the bill, Carl Levin says it was the White House itself that
demanded that the infamous Section 1031 apply to American citizens.
Anyone familiar with this sort of “emergency” legislation knows that those
drafting the statutes like to cast as wide a net as possible. In this instance
the detention bill authorizes use of military force against anyone who
“substantially supports” al-Qaeda, the Taliban or “associated forces”. Of
course “associated forces” can mean anything. The bill’s language mentions
“associated forces that are engaged in hostilities against the United States
or its coalition partners, including any person who has committed a
belligerent act or who has directly supported such hostilities in aid of such
This is exactly the sort of language that can be bent at will by
any prosecutor. Protest too vigorously the assassination of US citizen Anwar
al Awlaki by American forces in Yemen in October and one day it’s not
fanciful to expect the thud of the military jackboot on your front step, or on
that of any anti-war organizer, or any journalist whom some zealous military
intelligence officer deems to be giving objective support to the forces of
Evil and Darkness.
Since 1878 here in the US, the Posse Comitatus Act has limited the powers of
local governments and law enforcement agencies from using federal military
personnel to enforce the laws of the land. The detention bill renders the
Posse Comitatus Act a dead letter.
Governments, particularly those engaged in a Great War on Terror, like to
make long lists of troublesome people to be sent to internment camps or
dungeons in case of national emergency. Back in Reagan’s time, in the
1980s, Lt Col Oliver North, working out of the White House, was caught
preparing just such a list. Reagan speedily distanced himself from North.
Obama, the former lecturer on the US constitution, is brazenly signing this
authorization for military internment camps.
There’s been quite a commotion over the detention bill. Civil liberties
groups such as the ACLU have raised a stink. The New York Times has
denounced it editorially as “a complete political cave-in”. Mindful that the
votes of liberals can be useful, even vital in presidential elections, pro-
Obama supporters of the bill claim that it doesn’t codify “indefinite
detention.” But indeed it does. The bill explicitly authorizes “detention under
the law of war until the end of hostilities.”
Will the bill hurt Obama? Probably not too much, if at all. Liberals are never
very energetic in protecting constitutional rights. That’s more the province
of libertarians and other wackos like Ron Paul actually prepared to draw
lines in the sand in matters of principle.
Simultaneous to the looming shadow of indefinite internment by the military
for naysayers, we have what appears to be immunity from prosecution for
private military contractors retained by the US government, another
extremely sinister development. Last Wednesday we ran here an important
article on the matter from Laura Raymond of the Center for Constitutional
The US military has been outsourcing war at a staggering rate. Even as the
US military quits Iraq, thousands of private military contractors remain.
Suppose they are accused of torture and other abuses including murder?
The Centre for Constitutional Rights is currently representing Iraqi civilians
tortured in Abu Ghraib and other detention centers in Iraq, seeking to hold
accountable two private contractors for their violations of international,
federal and state law. In Raymond’s words, “By the military’s own internal
investigations, private military contractors from the US-based corporations L-
3 Services and CACI International were involved in the war crimes and acts
of torture that took place, which included rape, being forced to watch family
members and others be raped, severe beatings, being hung in stress
positions, being pulled across the floor by genitals, mock executions, and
other incidents, many of which were documented by photographs. The cases
– Al Shimari v. CACI and Al-Quraishi v. Nakhla and L-3 – aim to secure a day in
court for the plaintiffs, none of whom were ever charged with any crimes.”
But the corporations involved are now arguing in court that they should be
exempt from any investigation into the allegations against them because,
among other reasons, the US government’s interests in executing wars
would be at stake if corporate contractors can be sued. And Raymond
reports that “they are also invoking a new, sweeping defense. The new rule
is termed ‘battlefield preemption’ and aims to eliminate any civil lawsuits
against contractors that take place on any ‘battlefield’.”
You’ve guessed it. As with “associated forces”, an elastic concept discussed
above, in the Great War on Terror the entire world is a “battlefield”. So
unless the CCR’s suit prevails, a ruling of a Fourth Circuit federal court panel
will stand and private military contractors could be immune from any type of
civil liability, even for war crimes, as long as it takes place on a “battlefield”.
Suppose now we take the new powers of the military in domestic law
enforcement, as defined in the detention act, and anticipate the inevitable,
that the military delegates these powers to private military contractors. CACI
International or a company owned by, say Goldman Sachs, could enjoy
delegated powers to arrest any US citizen here within the borders of the
USA, “who has committed a belligerent act or who has directly supported
such hostilities in aid of such enemy forces,” torture them to death and then
claim “battlefield preemption”.