On October 17, with
Dick Cheney, Alberto Gonzales, and Donald Rumsfeld standing behind him, George
W. Bush solemnly
announced, �in memory of the victims of September 11th, it is my honor to
sign the Military
Commissions Act of 2006 into law.�
It is apt that Bush invoked a terrifying assault on America as he signed
the Military
Commissions Act (MCA), legislation that chisels away at our civil
liberties, abets and immunizes top-level torturers, and strikes at the core of
American values and tradition. The
message that Bush gave when he signed the Defense Bill in 2005 is now truer
than ever: �Our enemies are
innovative and resourceful, and so are we. They never stop thinking about new
ways to harm our country and our people, and neither do we.�
�In memory of the
victims of September 11th,� Bush passed a law that Robyn Blumner of the St. Petersburg Times calls �an
obscenity against liberty and decency� and that the executive director of
the American Civil Liberties Union (ACLU)
calls �unconstitutional
and un-American.� A fitting tribute indeed for the victims whose names have
been manipulated
by this administration to justify everything from invading Iraq, to the
USAPATRIOT Act, to torture, to tax cuts. This �honor� to the victims of
September 11 is a national disgrace for which the Bush administration, both
houses of Congress, and the media are to blame.
While the White
House struggles to convince the nation that the MCA is perfectly legal and
essential in order for the CIA to continue �one of the
most successful intelligence efforts in American history,� the true
implications of this act must be made clear. Out of the many dubious clauses in
the act, the most egregious is the one that eliminates the writ of habeas corpus (the right to
challenge the legality of one�s imprisonment), a fundamental right that dates
back to the Magna Carta. In his First Inaugural Address in 1801, Thomas
Jefferson said, �Freedom of the person under the protection of the habeas
corpus I deem [one of the] essential principles of our government." Ironically,
the Supreme Court case, Hamdan
v. Rumsfeld, which held that Bush�s original military tribunals were
illegal and made the congressionally approved MCA necessary, would never have
occurred if the MCA had been in effect, as it was petitioned by a detainee.
According to the
MCA, �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.�
This allows the president
to seize a person who is in this country legally and detain that person
indefinitely. Who, though, exactly are these �enemy combatants?�
The MCA says, �The
term �unlawful combatant� means . . . a person who has engaged in hostilities
or who has purposefully and materially supported hostilities against the United
States. . . . or a person who . . . 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.�
With such vague
language as �purposefully and materially� and such ambiguous standards as
�another competent tribunal,� it is not difficult to foresee the grave violations
of human rights that the state can commit.
One of the few
vociferous opponents of the MCA in the Senate, Patrick Leahy of Vermont, presented this chilling scenario:
�Imagine, you are a law-abiding, lawful permanent resident. . . . You do
charitable fund-raising for international relief agencies. . . . Then one day
there is a knock at your door. The government thinks that the Muslim charity
you sent money to may be funneling money to terrorists, and it thinks you may
be involved. . . . You are brought in for questioning. . . . You ask for a
lawyer. But no lawyer comes. . . . Then you�re sent to Guant�namo. And then
nothing, for years, for decades, for the rest of your life.�
Does giving money to this hypothetical charity fit the definition of
�purposefully and materially?� Of course it does, because all the term really
means is that Bush has, what Thomas Jefferson School of Law Professor Marjorie
Cohn calls, �the
power of a dictator.� According to Molly Ivins, �one
person has already been charged with aiding terrorists because he sold a
satellite TV package that includes the Hezbollah network.�
Once you are
detained and denied the writ of habeas corpus, you effectively have no
protections, no counsel, and no rights. Bush has repeatedly emphasized that �we
do not torture� and �freedom
from torture is an inalienable human right.� This is only true if you allow
the Bush administration to define �torture,� a definition that has become so
nebulous that it might as well be changed to �whatever techniques are not being
used by the U.S.�
The MCA gives the president
the authority to define and apply Common
Article 3 of the Geneva Convention, which refers to the treatment of detainees,
and reconfigures the War Crimes Act
to expunge this nation�s crimes. The MCA, according to Amnesty International, will �narrow the scope of
the War Crimes Act by not expressly criminalizing acts that constitute
�outrages upon personal dignity, particularly humiliating and degrading
treatment� banned under [Common Article 3].� This is a considerable relief for
the torturers in our government. According to the Huffington Post�s Aziz Huq,
�the Bush administration has gutted the no-torture rule. It has added the requirement
that a person �specifically� intend to cause the pain that amounts to torture .
. . It means that any government agent who says his goal was to get
information, not to cause pain, hasn�t tortured. . . ."
The Bush
administration, then, does not think it is torture when federal government
employees engage �in acts such as soaking a prisoner�s hand in alcohol and
lighting it on fire, administering electrical shocks, subjecting prisoners
to repeated sexual abuse and assault, including sodomy with a bottle, raping a
juvenile prisoner, kicking and beating prisoners in the head and groin, putting
lit cigarettes inside a prisoner�s ear, force-feeding a baseball to a prisoner,
chaining a prisoner hands-to-feet in a fetal position for 24 hours without food
or water or access to a toilet, and breaking a prisoner�s shoulders.� Combine
those horrors with what other countries do to suspects seized by the U.S. under
the �extraordinary
rendition� program, and America�s shameful role as a violator of human
rights is illuminated.
Yet, we are
consistently told that opposing these acts and maintaining a basic level of
humanity and decency is tantamount to treason. Speaker of the House Dennis
Hastert claimed
that opponents of the MCA are �putting their liberal agenda ahead of the
security of America� and that Democrats �would gingerly pamper the
terrorists who plan to destroy innocent American lives.� According to Hastert,
we have the false dilemma of either �gingerly pamper[ing] the terrorists� or of
criminally stripping Americans and non-Americans of their rights, torturing
them, and committing the brutalities and excesses of tyrants. This is one of
the many logical fallacies employed by the GOP leadership to misconstrue the
terms of the debate and cause people to vote out of fear; a strategy that
weakens this country and undermines democracy.
The media, which
has been uncritical
and complicit in regard to torture has failed its democratic obligations
once again with the MCA. When the legislation was first introduced, the media
considered the �substance a
yawn� and preferred to �focus on the sexy rift between George Bush�s White
House and those roguish Republican mavericks headed by John McCain.�
Michael Ratner, who is the president of the Center for Constitutional Rights,
pointed out on the Fairness and Accuracy in
Reporting radio show, CounterSpin,
�There was no internal rift about habeas corpus, which was barely covered in
the press.� By pitting these two ideologically similar contingents against each
other as the only two sides of the debate, the media effectively erased the
massive criticism leveled by constitutional law experts, human rights
activists, watchdog groups, and everyone else who has a stake in preserving
civil liberties and international law.
By the time the
press addressed the real issues concerning the MCA, it was too late. A
New York Times editorial, titled �A Dangerous New Order�, calls the MCA �an
unconstitutional act.� Unfortunately, the editorial, which could have
influenced votes in the House and Senate, was run after the act was signed. The
editorial also erroneously states, �The law does not apply to American
citizens, but it does apply to other legal United States residents.� In fact,
as Robert Perry
of Consortium News points out, the Act states that �Any person is punishable as a principal under this chapter who
commits an offense punishable by this chapter, or aids, abets, counsels,
commands, or procures its commission.� Another inaccurate statement was made on
Fox News Special Report with Brit Hume,
when Major Garrett said, �this bill does give detainees the right to appeal
their status as enemy combatants, just not before civilian courts. They can
appeal to a court of military review.� Detainees
do not all have procedures to challenge their detention in court, an error
that was addressed by the media watchdog group Media Matters.
The seamless
couplings of the Bush administration, both houses of Congress, and the media,
combined with the powerlessness of the judiciary, exposes this new era of
anti-democratic collusion and the dissolution of �checks and balances.� It is a
harsh blow to democracy when the criminals in the highest offices of the
government prove they are not criminals by changing the laws that they
violated. The strategy of those who made the MCA into law is to erase their
past crimes to pave the way for new ones. The MCA effectively immunizes
government officials against allegations of torture and other war crimes. Surely
this was a consideration when Alberto Gonzales told Bush that denying the
Geneva Conventions would �substantially
reduce the threat of domestic criminal prosecutions under the War Crimes Act.�
Rosa Brooks wrote
in the Los Angeles Times,�It�s
far too late for Bush to have a legacy that won�t be a source of shame to
future generations. So he�s going for second best: a congressionally
delivered get-out-of-jail free card.� This �get-out-of-jail free card,� while
giving the Bush regime tyrannical powers and immunity for past crimes, has the
reverse effect for all the co-conspirators who let Bush hurt this country:
Congress (and all those Democrats who voted �aye�*), the media, the courts,
and, of course, we, the voters, all of whom are now more culpable than ever. The
MCA is the latest link in a chain that increasingly shackles democracy and
progress, that tarnishes the rights and dignity of every person in every
country, and that, with every new link, makes us more complicit accomplices to
the crimes committed by our government, by the ones who hate our freedom.
*Democrat
Senators: Carper (D-DE), Johnson (D-SD), Landrieu (D-LA),
Lautenberg (D-NJ), Lieberman (D-CT), Menendez (D-NJ), Salazar (D-CO),
Rockefeller (D-WV), Nelson (D-FL), Nelson (D-NE), Pryor (D-AR), Stabenow (D-MI)
WHAT YOU CAN DO
ABOUT IT
In a State Department Foreign Press Center
Briefing, John Bellinger, the Legal Advisor to the State Department said: �And
with respect to the Military Commissions Act, which is extremely complex, hard
to understand, as wonderful a job as you all do in reporting this in the press,
it is hard to understand the details of the law unless one gets down, lawyer to
lawyer, to explain it.�
Articles and
documents that actually
help explain it:
How Congress Voted on the MCA:
Tell Congress What You Think:
Organizations the Defend the Constitution:
About Habeas Corpus
Law Reviews:
- The Torture Myth, by Anne
Applebaum, Washington Post
- Documents on America�s
use of tortue, from the American Civil Liberties Union
- Sign the Amnesty International pledge
against torture, �The America I
Believe In�
- Host a viewing of Outlawd: Extraordinary Rendition, Torture, and Disappearances in
the �War on Terror.� Click
link for free DVD.
- A Crime, Not A War, by Aaron
Sussman, about torture and the media
- �U.S. Torture and Abuse of
Detainees,� from Human Rights Watch
- Why Retired Military Brass Don�t Want Torture, by Charles
Kaiser, LA Times
Aaron
Sussman is the co-founder and Executive Editor of Incite Magazine (www.InciteMagazine.com);
he can be contacted at Aaron@InciteMagazine.org. For
more of Sussman�s work, visit www.ACrowdedFire.com.
