Wow. Holy Joe Lieberman and John McPOW have introduced legislation regarding terrorists, enemy combatants, and, to quote their bill, "unprivileged enemy belligerents." It's pretty amazing and, one would think, the sort of thing from which true conservatives would recoil like a .50 cal:
The provision that removes all discretionary limits to this secret determination of status is in the Criteria for Designation of Individuals as High-Value Detainees. That section creates an initial impression that such "determinations" are subject to the rule of law by laying out specific criteria, beginning with "(A) The potential threat the individual poses for an attack on civilians..." (B) the potential threat the individual poses to United States military personnel..." etc. But the final criterion (E) zooms to infinity: it is simply "Such other matters as the President considers appropriate. "
Thus any individual, whether a foreign national or a U.S. citizen, can be designated an "unprivileged enemy belligerent," forever denied access to civilian courts and subjected to indefinite detention "without criminal charge and without trial for the duration of hostilities against the United States or its coalition partners" -- that is, forever -- on the basis of such other matters as the President considers appropriate.
Now, up to a point I'm okay with the idea that true terrorists might well deserve to be in a separate legal category, and that they should be subjected to smart, effective, and RELIABLE interrogations (which, as virtually all evidence shows, does NOT include torture in any form.) But it seems just a tiny bit strange, doesn't it, that two guys who have all but questioned the current president's loyalty are fine with giving him powers to arrest and detain indefinitely ANYONE he chooses, for ANY REASON AT ALL? With no legal recourse!!??
Paradoxically, while the President can set any criteria he chooses to determine the detainee's status, he can only overrule the final status determination if the Attorney General and Secretary of Defense disagree. Also paradoxically, once a captive"is captured" or "comes into custody" and "is suspected" of being or "may be" an "unprivileged enemy belligerent" -- note the passive voice and other grammatical constructions obscuring agency -- the President does not have the option of having the suspect tried in civilian court. If the AG and the SecDef are in agreement they are apparently accountable to no one.