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Bush's
Military Commissions Act and the Future of America
By JENNIFER VAN BERGEN
"The legacy of Nuremberg
and the solemn undertaking that Justice Jackson gave for the
United States at the opening session, are under assault by the
Bush Administration, which has embraced a radical world view
that rests on a cult of power and a disdain for law."
Scott Horton, When Lawyers
Are War Criminals
Before Congress recessed, it passed,
amid much criticism, the Military Commissions Act (MCA). The
Act has consequences for citizens and non-citizens alike. Among
it's worst features, it authorizes the President to detain, without
charges, anyone whom he deems an unlawful enemy combatant. This
includes U.S. citizens. It eliminates habeas corpus review for
aliens. It also makes providing "material support"
to terrorists punishable by military commission. And, once again,
the military commissions procedures allow for coerced testimony,
the use of "sanitized classified information" (where
the source is not disclosed), and trial for offenses not historically
subject to trial by military commissions. (Terrorism is not
historically a military offense; it's a crime.) Finally, by
amending the War Crimes Act, it allows the president to authorize
interrogation techniques that may nonetheless violate the Geneva
Conventions and provides future and retroactive immunity for
those who engage in or authorize those acts.
Given the troubling new broad powers Congress has given the President,
what will happen now?
While the President has consistently insisted these laws are
necessary, it is becoming increasingly clear that, in addition
to a huge up-swelling of anti-American sentiment in the Middle
East, the administration's approach to terrorism has led to a
tremendous number of false arrests and imprisonments. It is
hard to imagine that the MCA will not lead to more and greater
mistakes of law and judgment. Although the Act provides for
trial by military commission, it is unlikely very many will even
be tried. As Michael Ratner points out: "As detainees can
now be held forever without trial, why try them?"
Here's the picture: Citizens and non-citizens alike will be
rounded up and detained without charges. Alien detainees in
America will fall into the same legal black hole the Bush administration
created at Guantanamo, the same hole the secret CIA "Black
Site" detainees fell into. From all the evidence we have,
a large percentage of these "disappeareds" will be
innocent. They will be innocent but they will be subjected to
interrogation methods developed by the CIA and preserved by the
MCA which only a sociopath could view as anything other than
torture and which violate long-standing laws of war.
Citizen detainees will sit in detention for months or years.
New detention centers will spring up across the country (and
reportedly already are being built) to house the influx of what
will essentially be an entire new colony of inmates, a massive
new world of souls declared unworthy of basic human rights or
judicial notice.
In fact, the Act envisions and institutionalizes a whole new
worldview. In this new world, there is no longer a distinction
between a criminal and an enemy combatant. Think what this means.
Traditionally, an enemy combatant is a soldier of those against
whom we have declared war. Or, as Guantanamo defense attorney
P. Sabin Willett says, "When you declare a war you make
of your opponent a soldier, which is to say, a person of honor."
Under the MCA worldview, all
soldiers who do not fight for America are now criminals.
(The administration's distinction between lawful and unlawful
enemy combatant is a red herring. The administration has completely
refused to acknowledge the existence of any lawful enemy combatant
in their "war on terror." All are unlawful combatants,
which means they are terrorists, which means they are criminals.
The "war on terror," then, is actually a massive criminal
manhunt and prosecution, except without the legal safeguards.)
The blur also works in reverse: terrorist criminals can now
be tried by military commissions. Thus, we now have a world
in which criminal laws are just obsolete inconveniences that
prevent the state from protecting national security during an
endless undeclared war on an emotional state (terror).
It's a world of ever-increasing state fear conjoined with ever
greater need to control all means and ends, all free-breathing
thoughts, anything outside of the ever-shrinking box which the
state has allocated as our Free Speech Zone. It's a world in
which torture is a matter of semantics, not humanity or morals.
It's a world in which sociopaths -- those who are unable to
feel for others or see how their decisions affect others -- make
all the decisions.
What do good elementary schools matter in this world? What does
education matter at all? Or medicine? A living wage? Social
services? Public transportation? A roof over our heads? Voting
rights? Does society's infrastructure matter at all? War is
all that matters. The enemy is everywhere. All our resources
and energies must be directed against him.
Those who protest against this new regime become as much the
enemy as terrorists. ("Those who are not with us are against
us.") Those who stand up for common decency and basic human
rights are the enemy.
The MCA worldview precludes listening to the populace; it is
intent, rather, on controlling it. Greater and greater numbers
of the populace feel unheard and powerless, encouraging more
fear, which in turn opens the door for more government intervention:
"You have good reason to fear. The danger is real, but
WE will protect you." The hidden agenda is: "Give
us more power."
The promise of protection is empty, though, because, vampire-like,
it thrives on fear, and it sucks the spirit out of Americans.
With the populace silenced and paralyzed, lawyers will have to
take up the cause of preserving our freedoms. At minimum, then,
the near future will bring legal challenges. The MCA will be
challenged in court. Over 500 cases already on federal dockets
will be affected by the MCA.
And when will all this end? The MCA does not sunset. Although
Congress never formally declared war on al Qaeda or the Taliban
or Saddam or Afghanistan or Iraq or anyone anywhere else, the
Authorization to Use Military Force passed by joint congressional
resolution in November 2001 provides the President with open-ended
and (what he, at least, deems as) endless authority to carry
on this nebulous "war," which he does avidly without
either standing firmly on the laws of war or resorting finally
to the criminal laws. He picks and chooses what he finds useful
and convenient for his task of creating this new worldview, the
consequences of which neither he nor his Cabinet fully comprehend
for the future of America.
P. Sabin Willett asks: "We need to acknowledge, if we are
thoughtful people, that terror is everywhere, and has been with
us always, and involves all kind of people who later get called
men of peace.'"
"Does any single thoughtful person . . . think she will
live to see the end of terrorism? And thus the end of
the global war against it? Do you think you'll watch on TV as
the Emperor of Terror comes aboard a Navy warship to sign the
instrument of surrender? A phenomenon that has run down from
the 1st Century to the 21st, you think George Bush is the measure
of? Your grandchildren will never see that ticker-tape parade."
Willett concludes: "So can we at least be honest with ourselves?
When we say the President has special powers during the global
war on terror, we are saying he has them forever. Always and
forever can the President lock people up at Guantanamo without
meaningful judicial review. Always and forever he can ignore
the Congress's ban of torture, as he vowed to do last December
30."
Always and forever. It's a long time to spend in the soulless
new world created, with Bush's persuasion, by the Military Commissions
Act.
Now
Available
from CounterPunch Books!
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Against Israel
By Michael Neumann
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