Are You an ‘Unlawful Combatant’?

There has been a great deal of discussion about the Military Commissions Act of 2006 [.pdf], recently passed by both houses of Congress, and most of it has to do with the provisions allowing torture of alien detainees, that is, of non-citizens apprehended in, say, Afghanistan or Iraq, and their treatment at the hands of their American captors. Senators John McCain, Lindsey Graham, and John Warner, all Republicans, grandstanded for weeks over the torture provisions, then capitulated. Another “Republican maverick,” Arlen Specter, zeroed in on the real issue, however, when he said the bill would set us back 800 years by repealing the habeas corpus protections against arbitrary arrest and jailings – and then went ahead and voted for it, anyway.

Liberal opposition mainly centered around the morality – or, rather, immorality – of torture, but the debate largely ignored the ticking time-bomb at the heart of this legislation, scheduled to go off, perhaps, in tandem with some future crisis, e.g., another terrorist attack on American soil: the redefinition of the “unlawful combatant” concept that lays the foundations for this administration’s reconstruction of the gulag. Here is the new, broadened definition, as enunciated in the legislation recently passed by the House:

“The term ‘unlawful enemy combatant’ means – (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president or the secretary of defense.”

It doesn’t say “alien” or “terrorist,” although it specifically includes members of the Taliban and al-Qaeda. It says “person” – any person, including American citizens. As Bruce Ackerman, professor of law at Yale and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, puts it:

“Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.”

Congress has now granted the president the powers of a dictator. The rest of the story of our slide into absolutism is merely a matter of filling in the details.

Our rulers will naturally continue to pretend that we live in a normal democratic country, that the Constitution still means something, and that nothing essential has really changed – but, of course, everything has changed, as the post-9/11 War Party has relentlessly argued, and we had better get used to it. Because if you very vocally and aggressively refuse to get used to it, they can and perhaps one day will come for you. As an Arab friend of mine puts it when describing the routine operations of Middle Eastern police states, “You will never see the light.”

My Arab friend, a recent immigrant, lives in fear of arbitrary arrest, having been constantly exposed to the danger and possibility of it in his native land and during his travels through the Middle East, and it hasn’t faded with his arrival in this country. He flinches every time he sees someone in uniform, glancing up fearfully as I open the door to a FedEx delivery guy, and tracks police cars out of the corner of his eye as they cruise down the street. He is forever posing hypothetical situations in which he becomes the victim of a policeman who confronts him – perhaps on grounds of looking “suspicious” – and the story invariably ends with his deportation. Or perhaps, he says, they will simply “take me” – and with this he simulates a cop grasping him by the neck – “and send me to Guantanamo. I will never see the light.”

This kind of fear is understandable to Americans only on a very abstract level. We, after all, have no experience with a police state – not in the sense of a systematic totalitarian approach to repression – of which the European and Third World nations have plenty. Franklin Delano Roosevelt, for all his elaborate and extensive wartime apparatus of political repression and propaganda, never even came close to the police-state methods of his European cousinsonce-removed in Moscow, Berlin, and Rome. And the comic-opera machinations of J. Edgar Hoover and Richard Nixon, while reprehensible, never approached the savage efficiency of the KGB – about the only efficient institution in Soviet society.

The closest we came was in 1798, with the imposition of the Alien and Sedition Acts, which legalized the deportation of alien residents and criminalized criticism of the government, particularly the president. The Acts were, in effect, a Federalist coup d’etat, in which the neo-royalists grouped around the Federalist Party sought to ditch the Constitution and repeal the American revolution.

The Federalist counter-revolution was carried out under the colors of “national security,” of course, and in the shadow of war: as in the Bushian version, a fifth column of enemy aliens was a major target of the 1798 legislation. The Naturalization Act sought to limit support for the Jeffersonians by lengthening the residency requirements for immigrants: most new citizens of the youthful republic were instinctual Jeffersonians, drawn to the New World by the bright promise of liberty. The Alien Friends Act and the Alien Enemies Act, taken together, comprise a near-exact replica of the Military Commissions Act, mandating the seizure, detention, and deportation of male foreign nationals and resident aliens deemed hostile to the United States in wartime. The target: tens of thousands of French citizens residing in the U.S., who were unsympathetic to the Federalist cause. The real target of the coup leaders, however, wasn’t a foreign-born fifth column, but a domestic one.

The Sedition Act made it illegal for anyone to write, print, publish, or speak against the government in a manner deemed “false, scandalous, and malicious” and designed to hold the authorities in “contempt or disrepute.” In wartime, argued the Federalists, presaging our own red-state fascists, it was necessary to suppress criticism of the government, and several prominent journalists critical of the Federalists were tried, and some convicted. Opposition to the Sedition Act did much to fuel the subsequent Republican victory in the congressional elections of 1800.

I wonder if history will repeat itself, this time – or will we enter a timeline where the neo-Federalists finally succeed in their scheme to impose a dictatorship on American shores?

There is, of course, no equivalent of the Sedition Act of 1798 in the Military Commissions Act: only the seed of one, cited above. It establishes the principle that an American citizen may be seized and locked up in a military prison, stripped of the protections traditionally afforded him by the Bill of Rights. On the other hand, there is the question of how it will be enforced, and certainly there are numerous political factors to consider: repression without some degree of popular support is a risky business, as the Soviets came to understand only after it was too late. The administration must take all this into account before acting.

In the present legal and political atmosphere, however, it won’t be long before this malignant seed sends its tendrils aboveground and blossoms into a full-grown and fearsome flower of evil. One has only to listen to the latest pronouncement from our Beloved Leader, out on the campaign trail, implying that the Democrats are dancing on the borderline between criticism and treason when they bring up the National Intelligence Estimate on Iraq. Speaking to the Reserve Officers Association, he averred:

“Some have selectively quoted from this document to make the case that by fighting the terrorists – by fighting them in Iraq – we are making our people less secure here at home. This argument buys into the enemy’s propaganda that the terrorists attack us because we’re provoking them.”

Translation: A vote for the Democrats – or, rather, as the Great Decider would say, the “cut-and-run” Democrats – is a vote for al-Qaeda. Crude, and it remains to be seen how effective, yet this is not mere campaign rhetoric: Bush’s equation of antiwar criticism with “the enemy’s propaganda” is precisely the argument made by the radical ideologues who inhabit the fever swamps of organized neoconservatism. At their most feverish, the more excitable among them have theorized that the First Amendment is expendable when it comes to the “war on terrorism,” and that speech that tends to “incite” violence in the form of terrorism can be legitimately curtailed. Certainly the Europeans – with recent legislation limiting speech in Britain, and “hate speech” laws endemic throughout the European Union – have made great strides along this road. In America, however, the new authoritarians have, until now, had a tougher row to hoe.

During the 1940s, the Justice Department – obeying the president’s command to go after antiwar dissenters – launched a sedition trial that initially sought to indict prominent politicians and activists associated with the America First movement, but the radicals in the administration were reined in after the legal difficulties became all too apparent. The Justice Department wound up going after a group of 30 or so mostly harmless cranks, charging them with initiating a Nazi “conspiracy of ideas.” Among the indicted was Lawrence Dennis, the noted writer and intellectual. The trial was a farce from beginning to end.

Under the Justice Department’s legal theory, anyone who held views that in any way echoed or agreed with any aspect of Nazi ideology or pronouncements could be said to be engaged in “objectively” aiding the enemy. In this way, all the indicted individuals – many of whom had never laid eyes on their fellow “conspirators” – could be tied together, and then linked to an international network headquartered, naturally enough, in Berlin. These people had bought into “the enemy’s propaganda” – and the Roosevelt administration was determined to jail them.

In the end, however, the drama of the trial petered out and descended into parody. Dragging on for months on end, with testimony mainly consisting of government attorneys reading the defendant’s propagandistic efforts aloud, the Great Sedition Trial of 1940, which started with plenty of fanfare from the administration’s amen corner, soon became a laughingstock, and then – fatally – a bore. When the judge died of a heart attack several months into the trial, the administration thought better of it and pulled in its horns.

One suspects, however, that this administration will not be so easily deterred. To begin with, they won’t have to deal with a judge or bad publicity, because the “trial” will be conducted by a military tribunal, operating in secret. Secondly, the defendants will stand trial without benefit of constitutional protections normally afforded to all American citizens. I say “normally” because I am still living in the world before the passage of our modern-day Alien and Sedition Act, at least mentally. But it’s a new world, now.

The exact contours of this strange new world are vague, but they are fast coming into painfully clear focus. As the president equates criticism of the Iraq war with “enemy propaganda,” and the neocon media blares away at the theme of “dissent = treason” – or, as Glenn Reynolds puts it, “they’re not antiwar, they’re on the other side” – it isn’t hard to imagine that we have a few sedition trials in our future.

My expectations are dire, although this could simply be my own subjective impression, a mood that will pass. I can’t help feeling, however, a sense of gathering dread, attached not just to the Military Commissions Act but arising out of the political atmosphere surrounding its passage. I never could understand – in the sense of share – the fear of authority that emanates from my Arab friend every time he sees someone in uniform. Now, however, I am beginning to feel it myself – as we all will.

Author: Justin Raimondo

Justin Raimondo passed away on June 27, 2019. He was the co-founder and editorial director of, and was a senior fellow at the Randolph Bourne Institute. He was a contributing editor at The American Conservative, and wrote a monthly column for Chronicles. He was the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement [Center for Libertarian Studies, 1993; Intercollegiate Studies Institute, 2000], and An Enemy of the State: The Life of Murray N. Rothbard [Prometheus Books, 2000].