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Abu Ghraib in America?

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American citizens can be declared enemy combatants? Sure!

While the government of the United States has repeatedly in the past argued that people accused of war crimes deserve full due process protection, under George W. Bush it has reversed course, insisting that it is their right NOT to observe due process.

That’s what makes the new Military Commissions Act (MCA) all the more disconcerting. This legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be executed.

As Senator Russ Feingold said, “We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.”

This isn’t just a ‘liberal’ observation either, for as our very conservative former Attorney General John Ashcroft is quoted by the New York Times as saying at a private meeting of high-level officials in 2003, “Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him.”

Worse yet, such tribunals can be – and thus will be – used against American citizens. Don’t believe me – take Rep. Chris Van Hollen (D-MD) at his word. After all, the good citizens of Maryland pay him handsomely to know what is in our laws.

Columnist Mary MacElveen adds to the dilemma:

Bush will be given the power to decide which interrogation techniques are permissible … As he has lied to the American people, the United States Congress, and to the world [as to] why we needed to invade Iraq, can we fully trust his power to decide?

Personally, I wouldn’t let him decide which tie to wear each day.

I’m not a lawyer, nor do I pretend to be one when I blog. But even I can see from a cursory examination of readily available legal opinion that there is plenty of room in the law for the Bush Adminstration to assert that the exercise of such unconstitutional powers as those conferred by MCA are within their legal perview, primarily because of the many jurisdictional and empowerment issues that were never examined by the Courts at any level in prior case law dating back as far as about the time of the War of 1812. In other words, “There’s nothing in the law to say specifically we can’t, … so we will!”

If you are of a mind to do so, you may read what I’ve been reading in Detention of American Citizens as Enemy Combatants [PDF]. Your opinions may differ, but the point I am trying to raise is that this is a topic far too important to trust solely to the extreme partisans who have screwed us so many time before this issue arose. We all need to be looking at this and discussing what we think it means – loudly!

I won’t go into a lengthy dissertation of the legal precedents and their ramifications, but suffice it to say that as I understand the trends in court rulings concerning enemy combatants require that there be:

* a state of declared war prior to the detention of anyone for reasons of national security,
* and that legal representation be made available to anyone – even captured enemy soldiers – so that all of their rights under domestic and international law may be protected.

In addition, in many of these cited cases, the courts delineated the conditions under which American citizens may and may not be treated as enemy combatants for the purpose of trial or detention.

The Military Commissions Act is intended to do away with those ‘quaint’ problems which so concern the Bush Administration in their quest for world dominance. It very well might succeed in doing so. Congress has just met one vital judicial condition of passing enabling legislation for wartime powers with the passage of MCA, which easily solves another of those ‘quaint’ dilemmas. They are willing to provide the legislation allowing the president to pretty much do as he wishes.

MCA doesn’t, however, solve all of the dilemmas. As a careful reading of the linked document shows, there are several loopholes left wide open for Bush and Gonzales to exploit.

One of the largest is the question of what constitutes a legal declaration of war. Under the Constitution, that responsibility lies with the Congress, yet there have been instances in the past where the Congress devolved that duty upon the Executive branch – and not just prior to invading Iraq. The specific issue is whether or not the president can decide what is or is not a declaration of war without the specific approval of the Congress. The courts traditionally don’t lean in that direction, insisting that there be a specific concurrence and not the blank check Bush demanded and received for invading Iraq.

There is clear debate about whether or not a legal state of war exists. Without it, the first condition required by precedent is not met.

[Note to the Einsteins who will misinterpret this statement. The operative term is ‘legal state’, not whether war conditions exist. I will stipulate they do so that you won’t waste column inches debating that point. This post is long enough, as our editors can atttest.]

Another large loophole in case law regards the legal status of the entity toward which a declaration of war is issued. Traditionally, wars are declared only against sovereign nations, a definition which expressly excludes Al Qaeda, the nemesis of the current White House occupants. In domestic and international law, when a group of criminal individuals such as Al Qaeda are not affiliated with a governing national entity, the usual course of action involves international police agencies, with the threat of military action held in reserve, as could (should?) have been the case with the Taliban shielding Osama in Afghanistan.

It may not have made any difference in the long run, or delayed the historical process very long, but at least the traditional legal proprieties would have been observed. For an ‘image-is-all’ Administration, this should be considered important to a favorable world opinion of their activities.

Lastly, allowing only the president, or his empowered agent, to decide who is or is not an enemy combatant with no oversight or review whatsoever is no different than having these same persons decide who is and who is not a criminal without a proper indictment. Such power is expressly denied to those in power by our Constitution. As Sen. Feingold put it, “We shouldn’t leave it up to just one branch of government to make these incredibly important decisions.” Are we to become like the France of The Count of Monte Cristo? Summary imprisonment at the whim of the powerful?

Our Constitution says no. Unequivocally.

This brings us to the next major problem with the MCA apparently allowing the detention of American citizens as enemy combatants: the courts themselves.

Ever since the rise of Reagan, there has been a concerted effort to seat only the most reactionary of jurists on the bench. The intended purpose is to have conservative-friendly faces hearing cases to rule in the desired manner. The payoff for that effort is about to be realized.

Should someone detained under MCA live long enough to finally get the opportunity to have his case heard (see: Padilla, Hamzi, et al), only then can the court step in to rule on the precise meaning of these fine legal distinctions such as I present above. But the damage to the person and our society will already have been done, and the Bush regime can under prior case law plead the expediency of military necessity as the legal justification for what would otherwise be an unconstitutional act. There is no remedy for the aggrieved nor penalty for the perpetrator.

MCA is little more than an ex post facto law. It should definitely be declared unconstitutional, as the Constitution specifically prohibits such after-the-fact legal remedies. Many of the cases presented in the PDF document cite this prohibition. They also note that provision restricts the application of a law like MCA only to those who commit any covered acts after passage, not before. That is a universal prescription.

However, those who received such judicial redress had to wait for years to receive it. By then, as I noted above, the real damage has already been done. But at least they eventually had their cases heard by jurists who still cared about individual rights even in times of real war. This was supposed to mean that similar experiences would not face those to be accused in the future.

But in George’s Oil War, these are not normal times. Not politically, not judicially, not socially, nor in any other familiar way. Nor can we say with certainty that the staff of jurists on the American bench still consider their primary duty to be the protection of our rights while applying the law. They too often seem to have other, more personal interests on their minds and not the welfare of the society which employs them.

For instance, in very corrupt Ohio, where the judges are elected and not appointed/confirmed, Campaign Cash Mirrors a High Court’s Rulings. What this means is that there is a strong appearance of impropriety in the rulings of at least one of the Ohio State Supreme Court Justices, a roster which follows almost completely the wish list of one of his major campaign contributors.

Says another justice, a Republican himself:

“I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”

There are other means of bribery available than just cash for campaign ‘contributions’. Could being named to the US Supreme Court not be tempting to a jurist who would accept such tainted funds and then not recuse himself from a case involving said contributor? [You will note that I don’t assess party membership on said jurist. Corruption has, and will, involve members of any political group. Even moralistic religious leaders succumb to temptation.]

What I’m implying is this: if the lower court decisions concerning citizen detentions go the way that the Bush Administration desires, these cases should at some point arrive at the Supreme Court, where they will be ambushed in some manner to comply with providing legal cover.

This will be possible becuase there will soon be at least two open seats on the Supreme Court due to the age and illness of their current occupants. An ambitious and politically-connected jurist would know who to kiss up to to be considered for appointment when a seat opens – and the guardianship of the public legal commonweal be damned! At that point, the Bush Administration will hold six secure favorable votes in their hands – if all goes according to that plan.

There remains one option to the American voters to play a role in defending their Constitutional freedoms – see to it that that they are represented by those who know what their Constitutional duty is and who will exercise it.

What is that duty? Let’s let Lt. Gen. William Odom, former Director of the National Security Agency and Yale professor who has called the Iraq War, “the worst strategic mistake in U.S. history” speak on the subject:

[US Rep. Maurice Hinchey, D-Hurley, NY] asked Gen. Odom “How do we get out [of Iraq]?”

Odom’s reply came without a pause: “Well, the Constitution gives the House the right to impeach.”

Bring on that October Surprise, Karl. It had better be a good one!

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About pessimist

  • Bob Jones

    So which citizens has Big Bad Bush locked up at Gitmo without a fair trial, when they were not a threat to National Security?

    I will be waiting for your empty list.

  • Peter J

    Excellant article R,
    The only problem is that where law like this is twisted by the highest tribunal, in this case the President of the United States, you have no argument. Once found culpable under guise of the law you would have no regress.

    You would be called a lefty, liberal, pinko just by the action of calling this situation out. That is how a dictator remains in power, he feeds on the fear of the righteous, they feel protected by their defense of the highest power because they have allowed themselves to be caught up in that atmosphere.

    A dictatorship rises out of a mob mentality, the people bind together under the sense of security that they are right by association. In this manner they never have to worry about right or wrong, it will already be decided for them.
    This manner of “court” is tantamount to the lowest of the witch trials in Salem or to the highest of the reign of Adolph Hitler.

    For those who would argue against impeachment, they are caught up in this mob mentality and would argue the hardest against it. Fear is the fuel of despotism and it takes a binding of the mob, not neccessarily the majority, to assist the ruler in holding power.

    For the impeachment of this president and his administration it must be said that we are indeed dealing with a dictatorship. This is most difficult because of that ‘mass’ who would bind and cry foul.

    We cannot let that mass make our decisions. We are not in a “mob rule” state and must take any action to prevent those who are from feeling the power. We must not hang loosly and depend on others to combat this deviation from our democratic form of government. It is up to the majority, the people who lack the sense of responsibility, the same people who allowed this bastardization of our highest office through their laxness, to step up and feel the power of their majority.

    People must lose the fear of intimidation that this ruler uses just as Joe McCarthy used in the era of communism.

    We are at the edge, Bushism is becomming a realism. Before this administration takes one more step into power they must be fettered. They can not be allowed to make one more decision in the capacity of highest rulers. They are out of control and we must demand that our leaders, whether Republican or Democrat, bind together and end this reign before it is out of control.

    We are not leftist liberals ot right wing extremists and we need to put that fucking rhetoric away. These euphemisms are tools, without these instruments of seperatism we take away the power they depend on the most.
    We must use our brains and courage to stand up and defend ourselves against a power who deceives us and puts us and most of all, our children, in harms way under the guise of democracy. Their is no democracy in fighting wars with no real justification, spreading our form of terrorism across the world at the expense of millions of innocent lives. There is no democracy in changing our most fundamental rules of engagement, showing the rest of the world that we are as ruthless as a third world nation.

    Impeachment is imperative now. The time for discussion is over.

  • http://www.elitistpig.com Dave Nalle

    A fine collection of links in this article, but I notice that conspicuously absent is an actual link to the text of the Military Commissions Act. You’ve got lots of links to different second hand descriptions, but I wonder if you’ve actually read the act – certainly some of those you linked to seem to have trouble actually reading the entire act in detail.

    Just to help out, here’s a link to the MCA.

    Now let’s consider some of the claims you make in the article.

    American citizens can be declared enemy combatants? Sure!

    Can they? Sections 948b and 948c say specifically that the law applies to “alien unlawful enemy combatants” and 948a defines aliens as non-US citizens. This would suggest that the people in question have to be proven to be alien, and there is a procedure provided for determining this.

    This legislation would permit an individual to be convicted on the basis of coerced testimony

    Then what’s all this about in Section 948r:

    “(b) STATEMENTS OBTAINED BY TORTURE.—A statement obtained by use of torture, as defined in
    U.S.C. § 2340, whether or not under color of law, shall
    not be admissible against the accused, except against a
    person accused of torture as evidence the statement was
    made.

    would not allow full judicial review of the conviction

    Well, what about sections 950f and 950g which establish both a review tribunal AND independent judicial review by the US District Court of the District of Columbia?

    Don’t believe me – take Rep. Chris Van Hollen (D-MD) at his word.

    And somehow his partisan attack is more legitimate than yours is?

    Bush will be given the power to decide which interrogation techniques are permissible

    Not true. Again I refer you to section 948r which says clearly that interrogation techniques will be limited in accordance with USC 2340, not on the whim of the president.

    I’m not a lawyer, nor do I pretend to be one when I blog. But even I can see from a cursory examination of readily available legal opinion

    What youv’e done here is pick partisan legal interpretations which are as off-base as the worst things included in the MCA.

    as I understand the trends in court rulings concerning enemy combatants require that there be:

    * a state of declared war prior to the detention of anyone for reasons of national security,

    Which the Supreme Court ruled to exist as a result of the AUMF in the Hamdi case.

    * and that legal representation be made available to anyone – even captured enemy soldiers – so that all of their rights under domestic and international law may be protected.

    Odd, section 948k(c) clearly states that defendents get legal counsel. Plus, nothing in the MCA applies to captured enemy soldiers. They are clearly excluded because they are protected under the Geneva Convention as detailed in section 948a

    There is clear debate about whether or not a legal state of war exists.

    No, there is a debate about whether a declaration of war exists. There’s no debate about the existence of a legal state of war, because by attacking the US Al Qaeda created such a state.

    Another large loophole in case law regards the legal status of the entity toward which a declaration of war is issued. Traditionally, wars are declared only against sovereign nations, a definition which expressly excludes Al Qaeda, the nemesis of the current White House occupants.

    This is one of the most important issues addressed in the MCA. Defining a conflict with an international terror organization as a war is an essential first step to dealing with that conflict.

    Lastly, allowing only the president, or his empowered agent, to decide who is or is not an enemy combatant with no oversight or review whatsoever

    Again, still not true. 948a(7) establishes a Combatant Status Review Tribunal which is in turn overseen by the US District Court.

    Are we to become like the France of The Count of Monte Cristo? Summary imprisonment at the whim of the powerful?

    In the interest of literary accuracy, I have to point out that Edmond Dantes DID receive a full and legal trial. He was just faced with fabricated evidence and mounted a crappy defense.

    And then we get on to the issue of judicial reform, which is certainly legitimate, but a matter of state law which has almost nothing to do with the MCA which is in federal jurisdiction.

    I hate to be put in the position of defending something like the MCA, because there are certainly things in it which I don’t agree with, but if you keep misrepresenting the content of the act – as so many people who you’ve quoted are also doing – then I’m left holding the bag for the Bush administration. But in doing so, let me point out that I don’t believe that the suspension of habeas corpus is a good idea, and I think we always ought to err on the side of caution when deciding what defines a ‘fair’ trial.

    Clearly, the MCA gives far more rights and protections to non-uniformed alien enemy combatants than is required by the Geneva Convention, so what – aside from it originating with Bush – is the actual complaint here?

    Dave

  • RedTard

    Dave, this was meant to be a bush hating left wing circle jerk not an outlet for honest debate.

  • http://www.diablog.us Dave Nalle

    Oops, my mistake.

    Dave

  • Arch Conservative

    C’mon Dave you should know better by now.

    We might as well just call Realist Adam Ash Jr.

    Just what this site needs.

    Another moonbat author.

  • S.T.M

    Interesting that you link this stuff with the War of 1812-14 (one of my hobby horses), America’s first real defeat in war, despite the odd victory in battle and the creation of possibly the world’s best national anthem, and the first time in the nation’s short history that American troops were the aggressors (one of the few times, in fact). Before you switch off here America, please read on as it’s pertinent.

    It ranks up there with the debacle in Vietnam and was the first instance in US history of the hawks having won out against the better judgment of others. The invasion of Canada (it never achieved any of its its aims, and almost resulted in the loss of New England to the British, virtually at the behest of its own mortified citizenry) was undoubtedly a war of aggression, and little different to those launched by other nations in the years since that have been punished and dealt with as war crimes.

    It is worth further and far more honest study in the US on this basis alone, and should never be regarded or described, as it often is in the US, as “America’s second war of independence”. A more accurate description would be “Canada’s war of independence”.

    It’s also worth noting that after the US sued for peace, the British behaved in a very magnanimous fashion and granted most peace concessions requested by the peace commission of the United States. It is possibly only this reason that prevented further soul searching and testing of existing legal provisions in Washington (or what was left of it) over the conduct of the war and the punishment or lack thereof meted out to those who had pushed for it (and earlier, at the hands of their own countrymen, some outspoken US citizens who had opposed it).

    History certainly has been repeated in a couple of conflicts since where America hasn’t occupied the high-moral ground.

    But here’s the rider on this one: the US today faces an absolute clear and present threat, and for that reason alone, the rules of conflict can’t be judged in terms of history.

    It is right in this case to play closer to the rules set by a murderous enemy.

    Even then, they are afforded a thousand more rights than they give us.

    The only right they afford us is the right to be blown up.

  • Ruvy in Jerusalem

    Perhaps, gentlemen, we should await the Realist’s answers to Dave Nalle, who makes a number of impressive points – like actually looking at the legislation written about.

    I can read a law just as well as any “legislator” and I do not rely on them to know more than me – American law imputes knowledge of the law upon me (yes, in spite of living in Israel, I’m still an American citizen) which means in simple English, “ignorance is no excuse.” I am expected to know American law; that is the way American judicial decisions are interpreted. Ignorance of the law is, at best deemed “negligence,” and you pay fines for negligence. The next time you file income tax, check the booklets and you’ll see that.

    Inasmuch as the Realist has made the accusations, he should be willing to answer their rebuttals by Mr. Nalle. Failure to do so indicates he has abdicated his argument.

    On an entirely different point, the War of 1812, which was a military defeat for the United States, turned out to be a blessing in disguise. The blessing was the Battle of New Orleans, which took place after hostilies had actually closed.

    The way the battle turned out, a rout for the British marines who landed near New Orleans gave Americans an entirely different point of view of themselves. While the seeds for the concept of “Manifest Destiny” were certainly well planted before this war, after the victory over the British at New Orleans, the flower sprung forth full grown, carrying American soldiers all the way to Tokyo and Berlin 130 years leater, as the former colonials who had been beaten in their attempt to grab Canada rescued the empire that had defeated them.

    If this was a G-d given Blessing, I would argue that the storm that flooded New Orleasn last year was the sign of the cancellation of this Blessing.

  • S.T.M

    Ruvy … it was just one battle!! And after successive deafets. And almost at the same time, the British had given the defenders of Mobile Bay a good thumping and were on their way to capture Mobile when news of the treaty was revealed.

    It allowed Americans to gloss over the truth: that they’d started a war of aggression, copped a good flogging and couldn’t admit it to themselves. It’s a problem for the poor loves and has contributed to how they deal with the world 200 years later.

    But we love ‘em anyway …

  • S.T.M

    Ruvy: But I’ll agree they came to our rescue in WWII … although after three years of war, we were still holding our own…

    But that, truly, as much as they can be a really annoying pack of one-eyed self-congratulatory bastards, is one of the reasons we do love ‘em. Most of the time.

    And, for whatever it is worth to Americans, it is also why they have not been forgotten by us today.

  • Ruvy in Jerusalem

    Ruvy … it was just one battle!! And after successive deafets. And almost at the same time, the British had given the defenders of Mobile Bay a good thumping and were on their way to capture Mobile when news of the treaty was revealed.

    You’re absolutely right. It was just one battle. But it is the echoes that battle has had down through American history that convinces me that it was a sign of a G-d given blessing. Just as I’m convinced that the inability of a great nation to rebuild New Orleans will finally convince Americans that Hurricane Katrina was a sign of the cancellation of that blessing.

  • S.T.M

    Ruvy said: ” … a G-d given blessing. Just as I’m convinced that the inability of a great nation to rebuild New Orleans will finally convince Americans that Hurricane Katrina was a sign of the cancellation of that blessing.”

    As much as I am giving them a gee-up here, there is also no doubting that they are the world’s most capable and resourceful people. So what is happening in New Orleans?

    My fear is that the lunatics are actually running the asylum, which is the real problem. I don’t even neccessarily mean Bush (people underestimate him at their own peril, is what I’ve heard), either, but some of those around him.

    Not being around it 24/7 I can’t offer any view that comes from genuine knowledge but it appears the whole business of New Orleans has been a shit-fight from start to finish. But why?

  • Ruvy in Jerusalem

    STM,

    The whole thng is a shit-fight. That appears to be all they are capable of these days. This is not said with contempt, it is said with sadness. I did spend a number of decades living in the Unnited States before leaving for home.

    A great nation is going down the toilet, STM, and it is a tragedy to watch it all…

  • Steve

    I hope we have secret prisons in the US for terrorists. Now they can scream all the “Allah Akbar” they want in their 6×8’s.

  • Jerry

    Realist,
    What really concerns me about the PA and the MCA is not what the Bush Administration may do with it, but what Hillary may do with it.

    Do you think that Dem’s will take steps to abolish these Acts?