Last week, I posted on Senator John McCain’s Senate Bill 3081 which, if passed, will allow American citizens suspected of terrorism to be held indefinitely without trial, and/or put through the military court system. Senator James Inhofe is one of the surprising co-sponsors of this bill titled “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010. I spoke to Brandon Andrews in Inhofe’s office about the bill, which he seemed well acquainted with.
Taliban American Adam Gadahn and al-Qaeda Anwar al-Awalaki were discussed. There is no doubt it is a new day in America, and there is an obvious need to find a way to handle American jihadists. Can we find a way to adhere to the U.S. Constitution and bring non-military Americans to a military trial? And how in the world did these Senators let this bill get this far?
First, this bill is clearly not in line with the Fifth or Sixth Amendments which says an American citizen cannot be held for capital crimes without the benefit of a Grand Jury indictment, and citizens must have the right to a speedy and public trial.” (See the text of both amendments at the bottom of this article.)
Brandon Andrews stressed that an American citizen, under SB3081 would not have the privilege of a Grand Jury if found to be a high-value detainee, but the bill provides for a final determination of the citizen’s status by certain members of Congress, and the determination is to be made within 48 hours. If the detainee is determined not to be a “high-value detainee,” or “Unprivileged Enemy Belligerent,” then the citizen moves into the federal court system, or is released, and is out of the reach of SB3081.
If the citizen is deemed to be a “high-value detainee,” or an “Unprivileged Enemy Belligerent,” the the citizen is covered by SB3081, and is not entitled to a civilian court, a Grand Jury or a speedy trial.
I asked about al-Qaeda being specified in the bill, but not the Taliban. I asked about American Adam Gadahn, a
Taliban al-Qaeda leader, and was surprised to learn that Gadahn is not covered by this bill, because Afghanistan is a sensitive subject, these days. So, theoretically, and realistically, if Gadahn is captured, he will go through a civilian court.
If American Anwar al-Alwalki, a cleric in Yemen with 9/11 terrorist ties, as well as ties to Ft. Hood shooter, Nidal Malik Hasan, is captured he qualifies for SB3081.
I asked if a non-military American citizen has ever been tried in a military court. He said they had, and said he just had that information in front of him, but couldn’t pull it up at that moment. He said he would email the information. At one point he said I should have it in 10 minutes. After the phone conversation, the email did not come. I called him back. He said he would re-send it. I sent him an email to verify my email address. I still have not received the information, and have left a couple of voicemails for him but he has not returned the calls. This is unlike the way Inhofe’s office usually works.
From my own search, I did find a couple of instances of non-military citizens in military courts, but they were in the 1800’s. In 1866, Ex parte Milligan was decided in the U.S. Supreme court, ruling it unconstitutional for non-military citizens to be tried in military tribunals when civilian courts are still operating. That decision arose from 5 Americans planning to steal Union weapons and invade Union prison-of-war camps. SCOTUS found that military tribunals were illegal in states upholding the U.S. Constitution.
We have large numbers of American citizens joining the Islamic jihad effort, and we are increasingly at jeopardy from those citizens here, and those who have gone to Islamic countries to train. There is no doubt, it is a new day in America.
According to Brandon Andrews, there are some 3,000 Americans in Yemen in training camps right now. Yemen cleric Anwar al-Awlaki is a good example. He is New Mexico born-and-bred, but has fled to Yemen. It is alleged he had numerous contacts with jihadists in America: meeting with two of the 9/11 hijackers, correspondence with Fort Hood murderer, Nidal Malik Hasan, and perhaps he motivated Umar Farouk Abdulmutallab.
President Obama has approved the “targeted killing” of al-Awalaki.
During my phone conversation, there was no conclusion from Senator
Inhofe’s spokesman, Brandon Andrews, about how this bill works with the
U.S. Constitution. According to Mr. Andrews, there is probably language
in SB3081 that
needs a review or clarification.
For your reference, here is the text of the Fifth and Sixth Amendments:
Fifth Amendment to the U.S. Constitution
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the mIlitia, when in
actual service in time of War or public danger; nor shall any person be
subject for he same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use,
without just compensation.
Sixth Amendment to the U.S. Constitutionthe
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.
Back to my question of how these distinguished Senators let this poorly written legislation get this far, I don’t have the answer but will venture a guess: perhaps the routine is that the “needs” are put on paper in the form of a bill, with all it’s warts and pimples, in the hope they then get fleshed out in committees.
Related and Background:
John McCain’s SB 3081 Holds Americans Indefinitely without Trial