Congress and the Dangerous Drive Towards Creating a Military State


“Some issues,” the New York Times declared in an editorial on June 25, “require an unwavering stand. Preserving the role of law enforcement agencies in stopping and punishing terrorists is one of them. This country is not and should never be a place where the military dispenses justice, other than to its own.”

Fine words, indeed, although the Times itself has, over the last ten years, in common with most, if not all of the American establishment, failed to thoroughly and repeatedly condemn efforts, first by George W. Bush, and then by the Obama administration, to hold military trials for the mixed bag of soldiers and terrorist suspects held at Guantánamo.

This is where the rot set in, for which everyone in a position of authority, whether in politics or the media, bears responsibility. However, the failure to stem the poison flowing from this wound to the established order — in which terrorists are criminals, and soldiers are not terrorists — has led to an outrageous situation in which lawmakers (both Republicans and Democrats) have decided that the aberrations introduced by the Bush administration, which should, by now, have been thoroughly discredited, were, instead, just the first steps in the creation of an all-encompassing military state.

In this dystopian future, coming to America within months, if lawmakers are successful, anyone regarded as a terrorist must be held in military detention, where, it is planned, they may be subjected to abuse with impunity, and, if required, held forever without a trial and without any rights.

This was the aberration initially dreamt up by Bush and his close advisors for their “War on Terror,” and implemented at Guantánamo, throughout the war zones in Afghanistan and Iraq, and around the world in a network of secret prisons, but although it should have died as an enduring concept when President Obama took office, it took less than a year for supporters of military detention for terror suspects to start proposing its continuation and expansion, suggesting that no foreign terror suspect should ever receive a federal court trial.

None of the cheerleaders for military detention cared that, throughout the eight years of the Bush administration, the detention program in the “War on Terror” was actually a failure as well as an aberration, which had struggled to try just three men, because the correct venue for terrorist trials was in federal court, where hundreds of successful trials took place.

Instead, when, in November 2009, Attorney General Eric Holder announced a federal court trial in New York for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, the cheerleaders for military detention began mobilizing against the trial, starting a successful backlash that encouraged the administration first to freeze the proposal, and then, this year, to officially abandon it in favor of a military trial at Guantánamo.

This was a disgrace — and Eric Holder knew it, if no one else — but what no one in the administration foresaw was how Obama’s steady capitulation to pressure would embolden his critics to make ever more outrageous demands. Six weeks after the 9/11 trial announcement, when Umar Farouk Abdulmutallab, a Nigerian, was apprehended in Detroit after trying — and failing — to blow up a plane with a bomb in his underwear, the cries went up for him to be sent to Guantánamo and subjected to waterboarding, not read his Miranda rights, interrogated non-coercively by FBI agents, and tried in a federal court.

The critics did not have their way, although they did persuade the ever-compliant President to abandon releasing any more cleared Yemenis from Guantánamo, issuing a temporary moratorium that is still in place a year and a half later. This has contributed enormously to the stalemate at Guantánamo — where 171 men remain, even though 89 have been approved for transfer — and has created ill-feeling in Yemen, where the President has, effectively, judged all Yemenis as potential terrorists.

Even more crucially, the empowerment of Obama’s critics led inexorably to further attempts to dictate policy. There had been attacks on the President’s power before, through legislation preventing any prisoner from being brought to the US mainland for any reason except to face a trial, and through moves to prevent the President from closing Guantánamo by buying a prison in Illinois and moving the prisoners there. However, in December last year lawmakers went further than before.

In passages inserted into the annual defense authorization bill, lawmakers banned the use of funds to bring any Guantánamo prisoners to the US mainland — even to face trials — and specifically mentioned Khalid Sheikh Mohammed by name. They also banned the use of funds to buy a prison on the US mainland for the Guantánamo prisoners, and prevented the President from releasing any prisoner unless the defense secretary signed off on the safety of doing so. This provision was designed specifically to prevent the release of any prisoner cleared by the President ‘s own interagency Guantánamo Review Task Force to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan and Yemen.

These passages were an unwarranted and unconstitutional assault on the President’s powers, as even Conservative commentators recognized, but Obama again failed to challenge his critics. This reinforced them to such an extent that, in May, when dealing with this year’s defense authorisation bill, lawmakers in the House of Representatives responded to the news of the assassination of Osama bin Laden not by declaring an end to the “War on Terror,” but by insisting that the basis for that war — the Congress-approved Authorization for Use of Military Force, passed the week after the 9/11 attacks — should be renewed and made even more sweeping.

They also renewed their attacks on the President’s ability to transfer prisoners to the US mainland to face trials, his right to release prisoners to other countries without jumping through hoops, and his right to review prisoners’ ongoing detention without Congressional interference, according to his March 7, 2011 Executive Order authorizing the indefinite detention without charge or trial of 47 of the remaining Guantánamo prisoners. That order had already enraged those on the other end of the political spectrum, who recognized that it was Obama’s official extension of the heart of Bush’s own discredited detention policies.

Also included in the attacks was, for the first time, a fundamental assault on the President’s right to prosecute foreigners seized in connection with terrorist offences in federal court, also without interference from Congress.

The problems with the defense authorisation bill first came to light at the end of May, when the President’s advisors finally responded to “provisions that challenge critical Executive branch authority” by stating that, “If the final bill presented to the President includes these provisions … the President’s senior advisors would recommend a veto.”

That was important, but although the endless expansion of the “War on Terror” was dropped as an aim, as a result of concerted pressure from opponents, the Senate Armed Services Committee was fundamentally undaunted, and last month unveiled its plans for the mandatory military detention of terrorist suspects. As the New York Times explained in its dissenting editorial:

Republicans and Democrats are championing bills to further militarize the prosecution of terrorists, beyond anything even President George W. Bush proposed. They want Americans to believe the legislation will keep the country safer. In fact, these bills could end up tying the hands of FBI agents and other law enforcement officials trying to disrupt terrorist plots. They are likely to deprive prosecutors of their most powerful weapons in bringing terrorists to justice. And they come perilously close to upending the prohibition, which dates back to Reconstruction, against the military’s operating as a police force within the United States.

The Times also noted, correctly, that there was “no sign” that the White House had “tried to stop” the House of Representatives from “passing a particularly awful version of these bills, which would move most, if not all, terrorism cases from civilian courts to military tribunals,” or had “tried to stop” the Senate Armed Services Committee “from approving only a slightly better one.” The editors also had no time for complaints by Democrats on the Committee, who include Sen. Carl Levin, that “they defeated far worse proposals,” and made it clear that “President Obama must push the Democratic leadership to amend the Senate bill — and make it clear that he will veto any bill that turns over proper law enforcement functions to the military.”

While this situation continues to fester, with only the threat of a veto standing in the way of a dangerously militarized state, another development — the uproar over the administration’s proposal to try an alleged Somali terrorist, Ahmed Abdulkadir Warsame, in federal court in New York — has kept the advocates of military detention busy, even though the Warsame case actually raises a whole set of other troubling issues.

Before his arrival in New York to face a trial, Warsame had been held on a ship, in military custody, since April 19. As a result, the most troubling question ought to concern this two-month period off the books, whereas the military detention crowd has obsessed instead about how President Obama has been involved in what 23 Senators, led by John McCain and Mitch McConnell, described last week in a letter as an action that “appears to be a circumvention of the clear intent of many in Congress that terrorists captured abroad under the Authorization for Use of Military Force should not be brought into the United States for trial.”

Perhaps this will play into the hands of the Obama administration, in which federal court trials are seen as the correct venue for terrorist trials, even though Obama is himself responsible for having revived the military trials at Guantánamo in the first place, when he should have left them alone. This latest development — the letter from the 23 Senators — certainly doesn’t show lawmakers in a favourable light, as they continue, obsessively, to flog their pet topic.

If people are paying close attention, they may finally realize how deranged the advocates of military detention sound, although they should, of course, have been wary in the first place of the military being given powers that correctly belong to the law enforcement agencies, and especially of proposals that anyone accused of terrorist activities in the US must be held in military detention.

That way extreme danger lies — very possibly of the kind that led to the US “enemy combatant” Jose Padilla losing his mind in a US military brig during his ordeal of solitary confinement and torture between 2002 and 2005 — and if that is understood, then the correct focus in the Warsame story might become clear. That is to ask, ten years after ships were used to hold prisoners seized after the invasion of Afghanistan, at the start of the so-called “War on Terror,” why a ship has now been used to hold, for several months, a prisoner seized in connection with another conflict — in Somalia — in which the United States is not even officially involved.

In addition, it is also worth asking why, two and a half years since the end of the Bush administration, we are hearing once again about how a prisoner held outside the law had his first interrogations sessions — conducted under unspecified circumstances — followed by non-coercive interrogations by FBI agents, which were designed to secure evidence for a federal court trial. As the Associated Press described it, Warsame “was interrogated at sea by intelligence officials,” and it was only later that the FBI stepped in and “began the interrogation from scratch, in a way that could be used in court.”

Under Bush, the follow-up interrogators, after the torture had taken place, were openly referred to as “clean teams” — as they were in February 2008 when Khalid Sheikh Mohammed and his alleged co-conspirators, held for years in secret CIA torture prisons, were first put forward for military trials. If we are back in the dirty world of torture, that is even more chilling than the persistent attempts by lawmakers to establish a militarized state.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

32 Responses

  1. Andy Worthington says...

    On Facebook, Colin Lively wrote:

    Another Obama lie…he was going to close Guantanamo..and we good “peace brother” democrats continue to stay quiet…

  2. Andy Worthington says...

    Kristin Higgins wrote:

    i have a better idea – release all prisoners and put in their place the likes of Bush Blair Obama Cameron Cheney Powell Murdoch, the list is endless and throw away the keys

  3. Andy Worthington says...

    Great idea, Kristin. And thanks, Colin. The problem now, however, is certainly with those Democrats who cannot locate their spines in the face of Republican criticism, but more importantly with all those of whatever party in Congress (mostly Republicans) who are trying to rewrite the rules of war — who to detain and how, and how to try them — with exactly the kind of disregard for internationally acceptable norms (and the norms of US history) as though Bush and Cheney were still in power and America was facing a critical existential threat every minute of its existence. People need to wake up, smell the cynical fearmongering and fight back.

  4. Andy Worthington says...

    Dejanka Bryant wrote:

    Thank you, Andy. I will read it later tonight.

  5. Andy Worthington says...

    And I look forward to hearing from you then, Dejanka.

  6. teri schooley says...

    According to the ACLU, there are real threats to American citizens – not just mythical foreign “terrorists” – in the amendments to the Defense Authorization Act as written by the Armed services Committee.
    From the ACLU:
    [the changes would]
    * authorize the federal government to imprison indefinitely without charge or trial civilians — including American citizens— apprehended both inside and outside the United States, including individuals who had no role in the 9/11 attacks or any actual hostilities (the bill would mark the first time since 1950 that Congress explicitly authorizes the detention without charge or trial of American citizens)

    * mandate military detention of some civilians who would otherwise be outside of military control, including civilian suspects apprehended within the United States itself

    * transfer to the Department of Defense core prosecutorial and investigative responsibilities now held by the Department of Justice, the FBI, the Bureau of Prisons, and the Marshals Service, as well as by the state attorneys general of the 50 states.

    These provisions could significantly cut back on the historic protections provided to American citizens by the Non-Detention Act of 1971 and to all U.S. residents by the Posse Comitatus Act of 1878…

  7. Andy Worthington says...

    Yes. Thanks, Teri. A bit of back-up never hurts!

  8. Andy Worthington says...

    Joe Anbody wrote:

    thanks for doing what you do

  9. Andy Worthington says...

    And thanks for caring, Joe. Thanks very much.

  10. Ross Worthington, M.D. says...

    This is a nice description of some of the American insanity when it comes to “terrorism.” Of course the obvious problem with how the US deals with this so called war is that it creates more terrorists. But no one really wants to address that because there is also money to be made. The military industrial state essentially controls the media and congress. The things you write cannot be understood by “average” Americans as it creates too much cognitive dissonance. Go USA! Right?

  11. Andy Worthington says...

    Hi Ross. “The things you write cannot be understood by ‘average’ Americans as it creates too much cognitive dissonance.” Now if only it wasn’t the fascist types who have all the soundbites … I do keep trying: “Americans, your leaders are lying to you! Wake up and smell the cynical fearmongering, and don’t trust your corporate masters. They’re only in it for themselves!”

  12. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m sharing this now, and will Digg it later. This is, I think, one of your most strongly worded articles. For good reason, I’d say, since you discuss three things that are crucial: exactly what should Obama and his supporters have put their feet down to, exactly why was a ship used in an initial interrogation (if there was an interrogation), and just how far can the supporters of military detention go, and towards what, before any group of Democrats have enough moral (not just political) backbone to resist whatever bad things are opted for. These are precisely the issues most on my mind, although I do not have your command of the facts and legislative details. So I’m indebted to you for having written this.

  13. Andy Worthington says...

    Tenzin Nanette Miles wrote:

    Will share; excellent.

  14. Andy Worthington says...

    Ciudadano Kane Kane wrote:


  15. Andy Worthington says...

    Thanks, George, Temzin and Ciudadano, and everyone who’s shared this.
    George, I really appreciate your supportive comments, and your understanding of the gravity of the situation facing Americans today. Most people seem to be unmoved by it all; unaware or unconcerned, even as a bunch of deranged lawmakers propose to permanently change the basis of American life, law and liberty for the worse.

  16. Regina Kaniewski-Turcios says...

    Are some people eating different food or drinking different water from me? Are they being brainwashed somehow? or did the aliens take over while I wasn’t watching?

  17. Andy Worthington says...

    Perhaps the latter, Regina. They still look like human beings, but they’ve been hollowed out and replaced with something else, something completely inert, or completely self-reflecting. It doesn’t get any easier the more I recognize that I am surrounded by people who are asleep when it comes to genuinely understanding what’s going on. Because those who do understand recognize that they need to act — to speak up, to agitate, to write, to talk to people, to publicize and combat the fact that our countries are now run by crooks of a magnitude that we haven’t seen since the Middle Ages, when, yes, most of us were serfs.
    And we are now sleepwalking back to serfdom.

  18. Andy Worthington says...

    Louise Gordon wrote:

    Patriot Act, Military Commissions Act, Homeland Security, warrantless wiretaps . . . the police state is here.

  19. Andy Worthington says...

    And Congress is out of control, Louise. The plans to prevent Congress declaring an all-out open-ended war on anyone and anything may have been averted, but, as with those dark years under Bush when American citizenss — Jose Padilla and Yasser Hamdi — and US resident Ali al-Marri were held and tortured on the US mainland in military custody, the American people are unconcerned that a new bunch of madmen want “terrorists” to be imprisoned by the military, and essentially outside the law.

  20. Andy Worthington says...

    Louise Gordon wrote:

    And Obama has declared his right to assassinate American citizens abroad who are suspected of terrorism.

  21. Andy Worthington says...

    Yes indeed, Louise. That as well. The list of crimes grows ever longer, and Obama has ended up “owning” all of this and doing something Bush couldn’t: making it seem official policy by the time his term in office comes to an end. We have until November 2012 to make sure that truly dreadful policies have been repealed, and, realistically, only until January to really make noise about them without hardcore Dems accusing us of treason. It’s looking bleak …

  22. Andy Worthington says...

    Louise Gordon wrote:

    Where is Russ Feingold when we need him?

  23. Andy Worthington says...

    Louise Gordon wrote:

    Here he is:​ussfeingold

  24. Andy Worthington says...

    Thanks, Louise.

  25. Andy Worthington says...

    Willy Bach wrote:

    Andy, tweeted, re-posted, yes, truly shocking for those of us who care, but, as you say, “Most people seem to be unmoved by it all” – perhaps they would like a police state of their very own (I wish). No, I wish they would wake up, we need them to vote out this horrible excuse for a government and Congress in the USA and we need the acolyte nations, like Britain and Australia (and a long list of others) to get enough spine to say no to the failing Empire.

  26. Andy Worthington says...

    Absolutely, Wiily, yes. We need our own people to see clearly that what our leaders offer for our future is war, repression and the unfettered greed of the few, and that what we need is something completely different. We have imagination and creativity in our countries, which is being wasted, and which could be harnessed for the benefit of humanity, at a time when we need creative thinking.
    First, though, what you accurately call “the failing Empire” needs to be recognized, challenged and defeated.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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