“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.