WASHINGTON -- A measure that Congress will likely pass this week allowing indefinite detentions of Americans by the U.S. military will mark a significant loss in the war on terrorism, says a retired admiral who ran the Navy legal system.
The National Defense Authorization Act, passed by the Senate just over a week ago after a heated debate, includes a provision that requires the military to hold foreign-born terrorism suspects, and also lets the military grab U.S. citizens for indefinite detention.
The House and Senate are expected to release the final legislation as soon as late Monday, and in spite of a personal lobbying effort by President Obama, it is expected to include the controversial language.
To Ret. Adm. John Hutson, who was Judge Advocate General of the Navy from 1997 to 2000 and is dean emeritus of the University of New Hampshire School of Law, the idea that the United States is chipping away at one of its fundamental principles of civilian law enforcement is a win for terrorists.
"The enemy is just laughing over this, because they will have gotten another victory," Hutson told The Huffington Post. "There'll be one more victory. There won't be any bloodshed or immediate bloodshed, there's not a big explosion, except in a metaphorical sense, but it is a victory nonetheless for the enemy. And it's a self-inflicted wound."
Proponents of the measure, including the top members of the Senate Armed Services Committee, Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.), see it very differently -- as a commonsense step to give the military the legal authority it needs to fight the unconventional war on terrorism without treating would-be attackers as common criminals.
"There's a fundamental principle in that we don't want to criminalize a national security issue," McCain told reporters on Capitol Hill last week. "Any enemy combatant is an enemy combatant," he added, specifying that it does not make a difference under the bill if the suspect is an American citizen, except that the military has the choice of releasing citizens to law enforcement.
McCain was not willing to budge on letting the armed forces imprison Americans indefinitely, although he said the conference committee working out differences between the House and Senate versions of the bill would try to address FBI concerns that the bill would bar civilian authorities from investigating such cases.
"If the military has exclusive jurisdiction, then how does it work if you've got somebody who gets off a plane?" McCain asked. "You could say, 'Oh no, we've got to wait till the military gets here.' That's a legitimate concern."
The White House has threatened to veto the bill over the detainee provisions, and an administration official confirmed that President Obama called lawmakers personally to lobby for changes.
It's not clear that Obama's concerns are the same as Hutson's, or those of civil libertarians.
Besides Hutson's 28 years in the military justice system, he counted himself a conservative and Republican who "didn't vote for a Democrat for dogcatcher" until he became worried about the direction of the country and backed Obama in 2008.
He thinks Obama should be very concerned about the detainee provisions, and explained why passage of them would be a victory for terrorists, who he argued cannot beat the United States on the battlefield. Instead, he said terrorists have to focus their attacks and violence on getting the United States to beat itself. And infringing on its own liberties is a step in that direction, he said.
"In this war, the enemy doesn't have to win," Hutson said. "They can cause us to do things we wouldn't otherwise do, such as indefinite detentions, in the name of fighting a war," he said, noting that the country has already subjected itself to invasive scrutiny that would not have been tolerated before Sept. 11, 2001.
In the case of the defense bill, the detention provisions would raise key questions about basic legal concepts that have long underpinned guarantees of freedom in America, including the habeas corpus right to contest being jailed and the Posse Comitatus Act passed after the Civil War to limit the military's role in law enforcement.
"This is an asymmetric war. In asymmetric wars, you want to pit your greatest strength against the enemy's greatest weakness," Hutson said. "Our great strengths are our ideals and our system of justice."
"As it turns out, our enemies' greatest weakness is that they are bereft of ideals," he added. "If we can maintain our ideals, our sense of justice, in the face of this, we can win. What the enemy, what the terrorists want to do -- because they know they can't beat us militarily -- [is] they can try to change us. They can cause us to become more like them, and for them, that's victory."
The reason why, he argues, is that if the United States cannot portray itself as the holder of loftier ideals, then it is much harder to convince the rest of the world to stay on its side -- and it's harder to fight wars because even allies are less cooperative.
"Who's going to surrender to the United Sates if they think they're going to be detained indefinitely without a trial? Is anybody going to give up?" he asked. "Who's going to say, 'You know, maybe the United States isn't as bad as we think it is, and maybe it's al Qaeda and the Taliban who are the bad guys, and I'm going to side with the good guys?'"
In the nearer term, there's a large practical hurdle to military policing of America, Hutson notes -- that it makes the military focus on legal issues instead of fighting the war.
"It takes the eye of the military off the ball, off it's primary mission, to ask it to investigate, detain and prosecute terrorists," said Hutson, who now works with the group Human Rights First.
"We've had over 400 terrorism prosecutions since 9/11, and essentially, you're asking the military to do those prosecutions," he said. "That requires a great deal of resource, a great deal of experience and expertise, neither of which the military has."
Some argue that giving the military the lead helps save lives and make the country safer because the armed forces can act quickly without having to worry about the same level of criminal legal standards as police and prosecutors.
"Even if that argument is true in the short run, it's certainly not true in the long run," he said.
"I was dean in New Hampshire, where the motto is live free or die. The rest of that phrase, live free or die, is because there are things worse than death," Hutson said. "This kind of dramatic change to who we are as a nation, who we are as people, is not something that you can just sort of rhetorically say, 'Well, it's going to save lives'...
"It's going to cost lives." he said, "it's going to cost a way of life."
MIchael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.
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