What to Do and What Kind of Country are We?

The Military Commissions Act of 2006 presents United States Citizens with a choice: torture and imprison people indefinitely or stand up in revolt. I have to wonder how the States’ citizens will react.

Anecdotally I have to tell you that most people I speak to are totally uninformed. And even more frightening they seem to feel that the government will not step over the line in spite of evidence to the contrary.

Over at Truthout Phillis D. Engelbert and Lily Jarman-Reisch are not so sanguine. They write:

The MCA is so radical and sweeping that it could change the way high school civics texts are written. Gone are guarantees that individuals accused of crimes can know the charges against them, challenge their detention and conditions of detention, receive a speedy trial, see the evidence against them, be represented by a lawyer of their choosing, be treated humanely, not have evidence introduced against them obtained through coercion, and be judged by an impartial person or persons.

Gone are the checks and balances that keep one branch of government (the executive) from gaining too much power at the expense of another (the judiciary). The US has long been looked upon as the standard-bearer of human rights and due process around the world. If other countries now follow our lead, American citizens in foreign lands can expect be subjected to indefinite detention, in cruel conditions, without recourse or access to any sort of counsel or protection by international law.

The aspect of the MCA most troubling to legal scholars is its denial of habeas corpus - the right of a prisoner to challenge his or her detention as unlawful - to non-citizens designated "enemy combatants." Habeas corpus is a cornerstone of our Constitution (its suspension is allowed only in cases of invasion or insurrection - of which we have neither) and is an important recourse for those who have been wrongly imprisoned. Habeas allows, for instance, the wrongly imprisoned immigrant to argue that he is not the person the authorities are seeking, but that he happens to have a similar or same name as that person.

A related concern is the legislation's vague definition of "enemy combatant." An "unlawful enemy combatant" (as opposed to a "lawful" one - a member of a foreign army fighting the US) is defined as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States." The law gives the president discretion to determine who fits this description. There is nothing to stop him, for instance, from applying the label "enemy combatant" to a Muslim resident alien who donates money to a charity being investigated by the FBI - then imprisoning that person and keeping him in a legal limbo that may last a lifetime. There is also nothing in the law that explicitly exempts US citizens - for example, those who protest the president's war policy - from being called "enemy combatants."

In fact if we look back at the intentions of this administration, their actions not their words, we can see the future as it pertains to the Military Commissions Act of 2006.

In December of 2001 Attorney General Ashcroft testified in front of the U.S. Senate Judiciary Committee on the President’s Executive Order covering his then Military Commission formulation.

Here is some of the testimony of Ashcroft and the questioning of the members:

SEN. ORRIN HATCH (R-UT): (Chuckles.) Well thank you, Mr. Chairman. I'm
honored to be with you today. And as you know, I was pleased to co-author with
you the letter we sent to our good friend and former colleague, the attorney
general of the United States, asking him to come before this committee to
describe for us, and for the American people, some of the recent initiatives
undertaken by the administration to protect Americans from terrorist attacks.
And I am gratified that Attorney General Ashcroft readily accepted our
invitation and has taken time from his critical duties to be here with us today.

[snip]

SEN. FEINSTEIN: Does the order -- and this is getting at the intent -- does the order only
apply to the leaders of al Qaeda and those directly involved in the September
11th attacks and other international terrorist attacks, or will it also apply to
those only peripherally involved in criminal activity?

ATTY GEN. ASHCROFT: I think it's, first of all, important to note that it
does not apply to American citizens, nor does it apply to people who violate the
criminal law of this country generally.

SEN. FEINSTEIN: Is that legal aliens.

ATTY GEN. ASHCROFT: This is -- legal aliens are obviously subject to this
order. But the point is that the commissions were called into existence by
issuing a military order by the president that would try war crimes. So
individuals who have committed war crimes in the context of this time of
conflict are subject to this order unless they are United States citizens. And
technically, in that respect, the universe of individuals eligible for coverage
is a large number.

But similarly, every criminal law that we pass in the United States has a
potential coverage of 280 million people. That's the population of individuals.
And we see those laws as protecting the 280 million people, not putting them in
jeopardy.

Similarly, I believe the president's purpose in this war crimes commission
which he has issued -- and obviously it calls for the right to counsel and
things in the commission order -- is to protect people, not to place them in
jeopardy; and obviously the 20 million people in the United States that it would
protect, even though the fact they would be eligible for prosecution here, are
people who also fear the kind of terrorism that destroyed a number of
individuals, not citizens of the United States, in the World Trade Center
bombing and in the other incidents that related to September 11th.

It is important that the president's directive that we have a full and fair
hearing be reflected in what the Department of Defense eventually details as the
procedures. And I would -- I think it'd be appropriate for discussion and
contribution to be substantial in that regard to the department.

SEN. FEINSTEIN: I know my time has expired. Let me just clear this up. You're
saying, then, that the military tribunal will only be used for those who would
be prosecuted for war crimes.

ATTY GEN. ASHCROFT: War crimes. And the order limits the jurisdiction of the
commission to the commission of war crimes.

SEN. FEINSTEIN: Thank you.

Non-citizens and War crimes only indeed! Well, as we all know now the Military Commissions as envisioned by the Bush Administration didn’t quite get off the ground as they were grounded by the U.S. Supreme Court in Hamdan v. Rumsfeld.

What we do know is that this Administration has taken a rather expansive reading of the Patriot Act and has in fact detained U.S. Citizens, deemed “Enemy Combatants” based on the President’s say so, for indeterminate detention.

In the Jose Padilla case, the U.S. born citizen, who was detained in Chicago for ostensibly being part of a plan to set off a “dirty bomb” in the U. S., he was held in indefinite detention until the courts intervened.

In November 2005:

The Bush administration dumped the case it once trumpeted rather than face Padilla's diligent attorneys before the Supreme Court on a basic question, which they framed with commendable precision: "Does the president have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

The administration was facing a Monday deadline for making its own legal case to the court for the extreme proposition that any American could be held merely on its say-so that the person was "an enemy combatant" in an undeclared war.

Likewise in Hamdi v. Rumsfeld the courts intervened as well and the Supremes said:

The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C. § 4001(a)–which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”– the AUMF’s “necessary and appropriate force” language provided the authorization for Hamdi’s detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention’s legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.

Held: The judgment is vacated, and the case is remanded.

Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14—15.

Justice Souter, joined by Justice Ginsburg, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.

So, what we have here is an administration that holds U.S. Citizens without charges, due process, and in full violation of the rule of law.

Now one of the laws that empowers this administration is the Patriot Act. Which according to the Cato Institute, not exactly anything other than a right-wing think tank, is seriously flawed and more than likely unconstitutional.

Accordingly they report:

Government is legitimately charged with defending life, liberty, and property against both domestic and foreign predators. First among those obligations is to protect life. With America under attack, and lives at risk, civil liberties cannot remain inviolable. But that does not mean civil liberties can be arbitrarily flouted without establishing, first, that national security interests are compelling and, second, that those interests can be indicated only by encroaching on individual rights. Some parts of the PATRIOT Act do not pass that test.

And in fact the U.S. under the Patriot Act is using the law to avoid the law under the U.S. Constitution protections for criminal investigations.

According to the ACLU:

The Patriot Act increases the government’s surveillance powers in four areas:

1. Records searches. It expands the government's ability to look at records on an individual's activity being held by a third parties. (Section 215)
2. Secret searches. It expands the government's ability to search private property without notice to the owner. (Section 213)
3. Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).
4. "Trap and trace" searches. It expands another Fourth Amendment exception for spying that collects "addressing" information about the origin and destination of communications, as opposed to the content (Section 214).

These uses of the Patriot Act are not about going after terrorists they are about circumventing the U.S. Constitution, and the law of the land.

This is succinctly put over at Findlaw:

Among Patriot II's most worrying provisions are those affecting citizenship. Section 501 of the bill, deceptively titled "Expatriation of Terrorists," would provide for the presumptive denationalization of American citizens who support the activities of any organization that the executive branch has deemed "terrorist." While it is already illegal to provide material support to such groups, even for their lawful activities, such support is considered grounds only for criminal prosecution, not for the loss of citizenship.

By permitting denationalization based on a person's illegal activities, the Patriot II bill attempts to push the legal rules back toward a time in which Ashcroft and his ilk would feel at home: the McCarthy era.

So, when the U.S. Public is sanguine about this Administration’s stepping over the boundaries and lines of the law of the land, I am not, as it seems clear to me that this Administration has already done it and under the MCA the U.S. Congress has now given them the keys to the Monarchy and Kingdom.

It is time to take back the keys and this Country.

James Madison, in Federalist No. 47, put it succinctly: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."

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