So, you are in the airport, on your way to a nice sunny overseas vacation, when a Security Officer, examining your Passport picks up the phone, and a detail of police take you out of line and into a small sparsely furnished room for questioning. Though you are an American citizen, what may be facing you is indefinite confinement, no opportunity to call a lawyer, no opportunity to confront those who are accusing you, and loss of many other rights guaranteed by our Constitution.
If you think this is absurd…if you think this is not possible in America today…if you think I am exaggerating or using hyperbole…then you have not read the Military Commissions Act of 2006. Practically no Americans have. I did! You should. And, frankly, it is scary. And what I am about to describe in that Act are not my words, but a variety of quotes from the Act itself. The Act is somewhat complex, so let me try to condense, and explain its most onerous features, and why it is a danger to all Americans’ civil liberties, rights, and freedom.
The Act was passed in the waning days of the Republican-controlled congress in 2006. In the Senate, 53 Republicans voted for it, 32 Democrats against. In the House, 218 Republicans for; 162 Democrats against. Its partisanship was partially the result of the Bush Administration’s aggressive drive to gain greater power, with less oversight and legal obstacles using his Republican majority, in the handling of Unlawful Enemy Combatants (UECs). Knowing this is extremely important, as you will see.
So, who are the UECs? If you think they are mostly captured Al Queda operatives, you are only partially correct. The Act says this:
“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 Sates, or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Queda, 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.”
This sounds reasonable, except for this. The President or Secretary of Defense can pick a tribunal of their choosing to “determine” anyone as a UEC, including aliens and/or citizens. There is a separate category for “lawful” enemy combatants, like solders etc – although this bill also strips them of the conventional laws of war. But “unlawful” combatants, alien and U.S. citizens, are included in the Act. That’s you and me folks! And, there are no clear rules or precise criteria to define determination of why an individual may be charged and detained.
So what happens should such an event occur. Many bad things; in fact, you can kiss most of your Constitutional Rights goodbye. Here are some:
Though you will be tried by a Military Court, forget about the Geneva Convention:
The Act changes pre-existing law to explicitly forbid the invocation of the Geneva Conventions when executing the writ of habeas corpus or in other civil actions [Act sec. 5(a)]. This provision applies to all cases pending at the time the Act is enacted, as well as to all such future cases.
And, forget Habeas Corpus. In layman’s terms, this is the right to: a) see the evidence against you; b)face your accusers; c) have a hearing before an impartial judge or jury. To start with, you will have to find an attorney eligible to see classified information with a level of “Secret” or higher. Though American citizens CAN be determined to be UECs (as earlier noted) and detained, if you are an alien, you have basically no legal rights…zip, none, zero. Consider the following:
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Wait…it gets worse!. The Act further states:
…any alien detained by the United States government who is determined to be an enemy combatant, or who is ‘awaiting determination’ regarding enemy combatant status… allows the United States government to detain such aliens indefinitely without prosecuting them in any manner.
Again, if you think I am exaggerating the danger, don’t take my word for it. On Oct. 4, (Col.) Morris D. Davis the former Chief Prosecutor for the Officeof Military Commissions resigned in protest because, to quote: “(the system) is a rigged process stacked against the accused”. He also, said he would not use (in prosecutions) any evidence secured by waterboarding, then resigned; and now we are confronted with those missing tapes of aggressive interrogation, undoubtably torture. Just the other day, he was refused permission by the military to even appear before Congress. All are part of a disturbing and ongoing pattern of anti-civilibertarian activity by this administration.
I could go on, with other Draconian features of this incredible law, but would prefer to explain why I personally find it so dangerous. Naomi Wolf, in her new book, The End of America, points out in persuasive detail how insidious can be the incremental chipping away of liberties, rights, and freedoms. She makes a number of interesting observations as to how dictatorships gain power, and how compliant the public frequently is in these situations. (No! I am not saying George Bush is anything close to a dictator…I am merely describing the dynamics of creating dictatorships).
Dictatorships generally come to power through legal means. Hitler did not set up death camps then come to power – he was elected by a compliant public. His grasp of total power, and the elimination of rivals and laws was incremental. He created “enemies who threaten the order of the state”. At first, external enemies…but shortly internal ones as well, who needed to be identified, charged, and quickly put away without regard to trial. He convinced the public that “leaders know more than they do when it comes to securing the homeland”. During his rise to power, things seemed “normal” in Germany – he wanted to keep it that way, for those he was not acting against. And, most importantly, a complacent public went along with him as long as it was not their ox that was being gored! That was only the problem of those Hitler deemed “enemies”. It is “them”not “us”. Then, steadily, new laws were enacted to expand the definition of an enemy, and relentlessly eliminate virtually all rights, for all citizens, in order to facilitate action against the percieved threat.
I am certain you are thinking right now, “yes, but it could never happen to me”; I am not an enemy (at least not yet). Probably not, but that is beside the point. No person in power, in our traditional system of laws should ever be given the unrestrained right at his/her, discretion, to detain, charge or confine any individual without habeus corpus. That is the democratic way…that is the American way… pure and simple!
Recall Pastor Martin Niemoeller’s famous words as he was imprisoned by the Nazis: “First they came for the Jews, but I did not speak out because I was not a Jew. Then they came for the Communists, and I did not speak out because I was not a Communist. Then they came for the trade unionists, and I did not speak out because I was not a trade unionist. Then they came for me, and no one was left to speak out for me.”
The Germans incrementally traded freedom for what they were told was security, not realizing that eventually their freedoms would be lost as well. As Wolf so carefully details, that pattern can be applied to virtually every country where freedom was lost. Sound familiar?
So, can that happen here? Well, the Military Commissions Act is a frightening first step. Can our freedoms be lost in America? Only if we let them! I am hopeful our current Congress will revisit many of the anti-constitutional provisions of this Act; and balance them with the need to protect the nation, as well as the constitution. Perhaps the Act, in its overreaching, also will be eventually deemed unconstitutional by the Supreme Court. But, as long as this Act is in force, we, as concerned citizens must be ever vigilant in protecting our freedoms. Liberties are easy to lose…and very difficult to ever get back.