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!Powered by Sidelines