Are
YOU the Enemy?
by Joe Wolverton II, J.D.
October 30, 2006
Under the
Military Commissions Act of 2006, you could be.
The Military Commissions Act of 2006 allows the executive branch to
circumvent the Constitution, endangering the due process of law for
all Americans, not just terrorists.
On September 28, by a vote
of 65-34, the Senate formally passed S. 3930, the Military
Commissions Act of 2006 (MCA). The next day, the House of
Representatives followed suit, passing the act by a vote of
250-170, and the affixing of the president's signature is now a
formality.* This legislation is being highlighted by the Bush
administration and most Republicans as a get-tough-on-terrorists
measure that allows "alien unlawful enemy combatants ...
[to be] subject to trial by military commissions" without
the constitutional safeguards American citizens possess against
illegal detainment and judicial railroading. Moreover, the bill
allows "pain or suffering incidental to lawful
sanctions" and "statements ... obtained by
coercion" — think administration-approved methods of
torture. We are being told that this action is preventive
medicine to heal a world gone wrong. Question now: with this fix
in place, what's the prognosis for the patient?
To begin answering that
question, imagine the following scenario: your son Michael (or
daughter Michelle) is in Florida on vacation; you speak to him
via cellphone when he arrives at the airport and he is waiting
in line to check his bags. You go to your local airport at
arrival time to pick him up and he never appears. You call all
the relevant authorities, including the police, FBI, CIA, and
Homeland Security, and no one acknowledges having any
information on your son. You go almost out of your mind; you go
to the airport in Florida, interview security guards, concession
stand workers, and cabbies. You learn nothing. After six months
of never-ending worry gnawing at your gut, your son is dropped
at your house. You learn that he was mistaken for a known
terrorist by the CIA, flown to Cuba, and interrogated by being
repeatedly put in a giant freezer and chilled to within an inch
of his life and by being painfully deprived of sleep.
All of this would be allowed
under the new act. Worse yet, imagine that the government never
figures out that your son is innocent of all charges, and he
never returns.
Habeas Corpus
In effect, one could say that the sick world is
being given potent poison to bring about the cure sponsored by
President Bush. Granted, the bill does not apparently treat
citizens and foreigners equally, and the harshest treatment
would generally be doled out to foreigners, but is the bill
something we want to inflict on ourselves or others? Can we
justify it by saying that the majority of those scooped up will
be terrorist killers who deserve what they get? Let's look at
what the bill would do.
A component of this bill that has attracted the
attention of legal commentators and civil libertarians alike is
that part which authorizes the president to suspend the right of
habeas corpus. Habeas corpus is
Latin for "you have the body." It grants prisoners the
right to request from a judge the reasons for his incarceration.
Article 1, Section 9 of the United States Constitution plainly
states: "The privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion
the public safety may require it."
Despite the Constitution's clear restriction on
the suspension of this bulwark of liberty, the bill states:
No court, justice, or judge shall have
jurisdiction to hear or consider any claim or case of action,
including an application for a writ of habeas corpus, pending on
or filed after the date of enactment of this Act, against the
United States or its agents, brought by or on behalf of any
alien detained by the United States as an unlawful enemy
combatant, relating to any aspect of the alien's detention,
transfer, treatment, or conditions of confinement.
Torture
The act gives President Bush the power to define
for American interrogators behavior that does or does not
constitute torture, physical and mental pain, or serious
coercion. Admittedly, according to the black letter of the
Military Commissions Act, evidence obtained by torture is
inadmissible against the suspects. But what constitutes torture?
The legislation leaves it up to the military
judge to decide whether or not the coercive methods used to
elicit evidence from detainees constitutes torture. The act
instructs the judge to weigh the "totality of the
circumstances" surrounding the garnering of the prisoner's
testimony in making this crucial determination. This sort of ad
hoc determination of what is and is not torture is unsettling
and capricious. Remarkably, these parameters will be the only
binding guidelines for the CIA and others responsible for
gathering
intelligence from detainees, regardless of principles of the
Geneva Convention, rulings of the Supreme Court, or
constitutional prohibitions to the contrary.
Geneva Convention
This act dismisses outright the limitations and
guarantees provided by the Geneva Convention, as well. After the
vote, Senator Lindsey Graham (R-S.C.) tried to make the act
sound as if it never comes close to skirting the line in the
area of personal legal protections: "America can be proud.
Not only did she adhere to the Geneva Conventions, she went
further than she had to, because we're better than the
terrorists." But his statement didn't even hold water with
the military lawyers who would be charged with operating the
tribunals. Several commented on Common Article 3 of the Geneva
Convention. Article 3 (called "Common Article 3"
because it is common to all four of the conventions) proscribes
the "passing of
sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court affording
all the judicial guarantees which are recognized as
indispensable by civilized peoples."
In addressing this issue before a Senate
committee, Brigadier General James C. Walker, Staff Judge
Advocate General (JAG) for the Marine Corps, lamented: "I'm
not aware of any situation in the world where there is a system
of jurisprudence that is recognized by civilized people, where
an individual can be tried without, and convicted without seeing
the evidence against him. And I don't think the United States
needs to become first in that scenario."
This new law clearly ignores General Walker's
concern. Specifically, the law declares: "It generally is
neither practicable nor appropriate for combatants like al-Qaeda
terrorists to be tried before tribunals that included all of the
procedures associated
with courts-martial."
Brigadier General Walker's warning voice was but
one in a respectable chorus of credible opponents harmonizing in
their condemnation of the unconstitutional and unjust aspects of
the new law. None of the parts of this song sound as persuasive
as that of the officers of the armed forces justice system,
known as the Judge Advocate General (JAG) Corps. These uniquely
interested and informed military legal experts adamantly oppose
several key aspects of this new legislation.
Referring to the new law's provision that a
detainee is not allowed to see the evidence presented against
him, Rear Admiral Bruce E. MacDonald, the Navy's top lawyer,
echoes his colleague's sentiments: "I can't imagine any
military judge believing that an accused has had a full and fair
hearing if all the government's evidence that was introduced was
all classified and the accused was not able to see any of
it."
Not to be left out of the battle, the Air Force's
chief lawyer, Major General Jack Rives, flew into the fray and
dropped a bomb on the MCA, declaring that the commissions
established by the act do "not comport with my ideas of due
process."
Are You an Enemy Combatant?
Americans would be forgiven for naively believing
that while the threats to liberty in the MCA tip-toe toward
tyranny, they will only be used toward that end against those
with at least diaphanous ties to terrorism. Namely, they would
be employed to protect Americans from that group of n'er-do-wells
known as "unlawful enemy combatants." In language that
is sure to shake your sense of safety, the following is the
MCA's definition of an "unlawful enemy combatant":
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.
Notice that this definition contains no exception
for Americans; it throws the blanket over citizen and alien
alike by using the word "person" rather than
"alien." Jose Padilla found this out firsthand.
Jose Padilla is an American — born in New York
and raised in Chicago. On May 8, 2002, he was arrested in
Chicago after returning from Pakistan upon suspicion of being
linked to the
September 11, 2001 terrorist attack. Padilla's attorney
immediately filed a habeas corpus petition with the United
States District Court for the Southern District of New York,
seeking to invoke his client's constitutionally guaranteed right
to be informed as to the justification for his confinement. The
court denied Padilla's petition citing the president's authority
to designate any person, citizen or alien, an "enemy
combatant" and to detain such person indefinitely.
Padilla appealed this decision to the 2nd Circuit
Court of Appeals. The appellate court held that the president
had no such authority. The administration then appealed this
ruling to the Supreme Court, where the justices were called to
consider the legitimacy of the president's power to suspend the
constitutional protections of the due process of law from an
American citizen. The court meekly dodged this issue, however,
and remanded the case back to the district court for
dismissal without prejudice. Admittedly, Jose Padilla has a
history of criminal behavior, and he was no poster boy for the
law-abiding, but the rights set out in the Constitution are
designed to protect all Americans, likeable and detestable.
Another character ensnared in the "illegal
enemy combatant" net was Yaser Esam Hamdi. Hamdi was born
in Baton Rouge, Louisiana, to Saudi Arabian parents. In 2001,
Hamdi was captured by the Afghan Northern Alliance and
subsequently handed over to the U.S. military. Hamdi was accused
of being a member of the Taliban regime, but he and his family
argued that he was in Afghanistan as an aid worker and had been
erroneously detained.
Undeterred by his parents' testimony, Hamdi was
shipped to the detention facility at Guantanamo Bay, Cuba.
Later, he was transferred to a brig in South Carolina. In June
of 2002, a petition of habeas corpus was filed on Hamdi's behalf
by his
father. The court ruled that the petition was proper and granted
Hamdi's father standing to act in the place of his son. The
Fourth Circuit Court of Appeals reversed that decision, however,
ruling that the "security interests" of the country
outweighed Hamdi's right to file a habeas corpus petition. Upon
remand, the lower court denied the government's motion to
dismiss Hamdi's petition. The court requested evidence from the
government that would prove Hamdi's alliance with the Taliban
and his designation as an "unlawful enemy combatant."
The government refused to comply with the court's
order, and appealed the request to the Fourth Circuit.
Remarkably, the Court of Appeals held that the president's power
to make war (is this not a power delegated in Article I, Section
8 of our Constitution exclusively to the Congress?) prohibited a
court from interfering in matters of national security. The
decision was appealed to the Supreme
Court.
Although the Supreme Court's opinion in Hamdi
is diffuse and complicated, eight of the nine justices agreed
that the Constitution proscribes the Executive Branch's attempt
to hold indefinitely an American citizen and to deny him the
protections of the Bill of Rights with regard to the due process
of law.
Could a completely innocent person also be
ensnared? Yes. Khalid al-Masri, a German citizen, was abducted
in 2003 while he was on vacation, taken to Afghanistan, and
interrogated and tortured for five months before the CIA figured
out that they had abducted a completely innocent man who just
happened to have the same name as a wanted terrorist. (Why the
CIA thought that a well-known terrorist would have been
traveling and vacationing using his own name is anybody's
guess.)
Passage of the MCA was pushed by the current
administration in a bid to get congressional
approval of all the illegal actions that they had already been
taking, obviously banking on the idea that if they could get
congressional approval, they would also get Supreme Court
approval.
Prognosis: Long-term Suffering
The Military Commissions Act of 2006 is an
eradication of the most basic protections of liberty enshrined
for over 200 years in our sacred Constitution. The
all-encompassing powers granted to the president by this law
potentially forbid any man, woman, or child deemed an enemy of
the administration or its policies from seeking judicial relief
from unlawful imprisonment. Most terrifying of all, this law
enthrones President Bush — and his successors, whether
Democrat or Republican — as the ultimate arbiters of justice
to those suspected of being America's enemies. You can only hope
that that person is not you.
Those who fail to see the
dire gravity of this legislation and who prefer to take refuge
in the naive partisan belief that President Bush and the
Republican Congress would never abuse this tremendous
power, should contemplate well the fact that both the White
House and Congress may very possibly change to Democrat control
in the near future. Then will the supporters of the Bush
administration's grasp for power have a leg to stand on to even
protest, let alone stop, dictatorial exercise of the same power
under a Democrat regime run by Clinton, Feinstein, Boxer, Pelosi,
Schumer, and the like?
This law, as well as other recently chronicled
usurpations, sacrifices the due process of law on the altar of
absolutism. There can be but one final obstacle to complete
executive power — the people of the United States of America.
We must hold every member of Congress accountable who voted for
this unprecedented and unconscionable breach of our
constitutional rule of law,
and we must seek out and support men and women determined to
uphold the federal oath of office and courageously defend the
Constitution against all enemies — foreign or domestic. If we
do not do this, are we really better than the terrorists?
* To see how your U.S. representative and
senators voted, see House vote #39 and the Senate vote #39 in
the "Conservative
Index," pages 22-31.
