The threat of the banana republic

AS CHRISTMAS  greetings trumpeting peace and goodwill fly around the world, The Week  publishes this message for those who worry about liberty, by US based columnist 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 had signed 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 the state.

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 I signaled to Week readers 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.

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 Defence Authorisation 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.  

All onslaughts on potential sedition like to cast as wide a net as possible, so the detention act authorises 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 enemy forces."
 
That's 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 thunder of the military jackboot on your front step, or on that of any anti-war organiser, 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 authorisation 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 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 authorises "detention under the law of war until the end of hostilities."  

Will the bill hurt Obama? Probably not too much, if at all. Contrary to widespread belief, liberals are never very energetic in protecting constitutional rights. That's more the province of libertarians and other wackos 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.

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 – a US non-profit organization – is currently representing Iraqi civilians tortured in Abu Ghraib and other detention centres in Iraq, seeking to hold accountable two private contractors for their violations of international, federal and state law. In the words of Laura Raymond of the CCR, "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 defence. 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, and a ruling of a Fourth Circuit federal court panel stands, 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. 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".   

Don't laugh. ·