The Bingamin Amendment

Should the Secretary of Defense have sole and unreviewable power to designate anyone not a U.S. citizen an “enemy combatant” and thereby to hold that person incommunicado indefinitely with no access to the courts? No, I don’t think so, either. The vote is Monday.

Obsidian Wings is running the blog-campaign in favor of the Bingaman Amendment (S. Amdt. 2517) to the Defense Appropriations bill (S. 1047), which would strip out the court-stripping language of the Graham amendment.

Under the Graham Amendment as currently attached to the bill, the Secretary of Defense, merely by designating anyone not an American citizen as an “enemy combatant,” can hold that person incommunicado indefinitely, and that decision is not subject to any review by the courts.

Nor is it the case, in the view of the Bush Administration, that the category “enemy combatant” is restricted to those captured in or near actual combat. Someone can even be an “enemy combatant” unknowingly.

Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.

“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her….

“It is not limited to individuals who carried a weapon and shot at American troops,” Boyle replied. They don’t have to be on the front lines; they can be strategic advisers, intelligence informants, or supply workers including cooks, he said.

Green asked if a hypothetical resident of England who teaches English to the son of an al-Qaida leader could be detained. Boyle said he could because “Al-Qaida could be trying to learn English to stage attacks there,” and he compared that aid to “those shipping bullets to the front.”

Right. Anyone, anywhere in the world, is to be subject to arbitrary detention and maltreatment by the U.S. Department of Defense, subject to no review by U.S. courts.

A reader suggests that, if the Bingamin Amendment fails, the Democrats should threaten to filibuster the entire Defense Appropriations bill until it is attached or the Graham provision removed. Undoubtedly a dangerous move, politically speaking, but if Reid thought he had 41 votes against cloture, I’d say “Go for it.”

Amygdala has more.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: