By now the Senate may have passed the detainee bill. Most of the focus of the bill has been on interrogation techniques, but the really insidious thing is that Congress is poised to give the President to power to "disappear" people, the hallmark of the most heinous regimes of the recent past. We have now come full circle, because the first post I ever wrote for The Next Hurrah, a little over a year ago, was on bearing witness and the Mothers of the Plaza de Mayo in Argentina.
How is this so? As both the NY Times and Glenn Greenwald point out, the ability of the President to define anyone, including US citizens who have not left US soil, as "enemy combatants" on the basis that they had somehow supported terrorists, even if they had not in any way participated in hostilities against the US, coupled with the abolition of habeas corpus for those so detained, creates this result. Throwing someone in a dungeon with no opportunity for judicial review and no way for anyone to find out what has happened is precisely what is meant by "disappearing" people.
As Ackerman put it: "The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."
This last point means that even if there were a habeas corpus right inserted back into the legislation (which is unlikely at this point anyway), it wouldn't matter much, if at all, because the law would authorize your detention simply based on the DoD's decree that you are an enemy combatant, regardless of whether it was accurate. This is basically the legalization of the Jose Padilla treatment -- empowering the President to throw people into black holes with little or no recourse, based solely on his say-so.
This is a terrible, terrible, and unnecesssary precedent. We didn't need to do this in the Cold War even though the Soviets had the power to annihilate us. We didn't need to do this in WWII, even though we faced massed armies in the millions on the battlefield, plus navies and bombers. We need to do this now, when we face a small but determined group of extreme fanatics, only because we are led by power-hungry, delusional people who see this as a way to maintain their hold on power. But so-called "leaders" who would stampede Congress into passing such an abomination in order to gain an advantage in the mid-term elections surely would not stop at using these measures against their enemies if they faced even greater threats to their powers. It will start small, against the powerless. But these provisions will be used, make no mistake about it. People will disappear in the United States of America, and some of them will be US citizens. We all need to be extremely vigilant from now on. One day we too may be called on to bear witness on behalf of the disappeared.