The passage of the National Defense Authorization Act (NDAA) through the Senate last Thursday saw the culmination of a ten-year crusade by Senator Lindsay Graham (R-SC) to make the law of war apply on US soil.
In many ways Senator Graham is simply following the logic of the Global War on Terror frame to its inevitable conclusion: If we are at war with Al Qaeda all around the world then there is no good reason why US soil should be excluded.
Senator Graham’s avowed objective is to allow for the military detention of suspected Al Qaeda, Taliban or otherwise affiliated terrorists captured on US soil, but of course detention is not the only arrow in the military quiver.
Logic is a harsh taskmaster. If the war on terror is being fought on US soil the military would also now have the authority to do what it does best – engage the enemy with kinetic force. In other words, for those of you who don’t like euphemisms, to kill people.
As if on cue, CIA general counsel Stephen Preston and Pentagon general counsel Jeh Johnson popped up at a conference last week to confirm that US citizens do not have immunity when they are at war with the United States.
In summary, once the NDAA becomes law a US citizen on US soil can lawfully be killed by the US military if the military believes that citizen to be a terrorist affiliated with Al Qaeda or its allies.
The key word in that last sentence was “believes.” In the past ten years our intelligence hasn’t been that good. You may we recall we invaded Iraq because our intelligence indicated that Saddam Hussein possessed weapons of mass destruction. He didn’t. No small mistake that.
Also consider Guantanamo. Of 770 or so detainees labeled ‘the worst of the worst’ by Vice President Dick Cheney more than 550 were ultimately released without charge after years of ill treatment. At the very apex of US operational capability, our intelligence was flawed 2/3s of the time.
The concept of collateral damage may become rather more real for Americans in the years ahead.
The threshold for what is considered terrorist activity by the US government – and thus can be engaged militarily – is also somewhat lower than you might imagine. The new Authorization for the Use of Military Force pegs that threshold at providing ‘substantial support’ to Al Qaeda and its allies.
In the past ten years the ‘substantial support’ test has encompassed buying rain gear, allowing a suspect to make a call on a personal cellphone and writing an opinion piece critical of the US government for the liberal British newspaper, The Guardian.
That is the standard coming to a neighborhood near you if the President doesn’t veto this bill.
Perhaps, you think I am exaggerating the threat that this Act poses?
The same day that the NDAA passed the Senate, Amnesty International called on the government of Tanzania to live up to its obligations under the Convention against Torture and detain former President George Bush for, by his own admission, ordering the torture of detainees in US custody.
Within hours Fox News had whipped up its commentariat into such a frenzy that one talking head, former Bush adviser Brad Blakeman, opined:
“It could be taken as a call for violence against the president… I think it’s a threat upon… the former president.”Setting aside the fact that it takes a rather twisted mind to equate a call for the application of due process of law to a threat of violence, Blakeman’s comment comes within a whisker of accusing Amnesty International of providing material support to terrorists.
Overheated rhetoric may have relatively minor consequences on the debating floor, but those consequences could be rather more serious once the debating floor is considered to be part of the battlefield.
Now, I don’t seriously expect hellfire missiles to come crashing through the window of Amnesty’s DC office any time soon, but in the legal landscape this new bill creates there is quite simply no meaningful check preventing it.
If someone with their finger on the trigger decides to take the view that criticizing government is providing aid and comfort to the enemy, then the critic could become a target.
And on the battlefield there is no burden of proof or judicial review. If the military over-reaches, or worse still, makes a mistake – good luck trying to fix it.