Are YOU the Enemy?

Are YOU the Enemy?
by Joe Wolverton II, J.D.
© Copyright 2005 American Opinion Publishing Incorporated
October 30, 2006

Under the Military Commissions Act of 2006, you could be.

The Military Commissions Act of 2006 allows the executive branch to circumvent the Constitution, endangering the due process of law for all Americans, not just terrorists.

On September 28, by a vote of 65-34, the Senate formally passed S. 3930, the Military Commissions Act of 2006 (MCA). The next day, the House of Representatives followed suit, passing the act by a vote of 250-170, and the affixing of the president's signature is now a formality.* This legislation is being highlighted by the Bush administration and most Republicans as a get-tough-on-terrorists measure that allows "alien unlawful enemy combatants ... [to be] subject to trial by military commissions" without the constitutional safeguards American citizens possess against illegal detainment and judicial railroading. Moreover, the bill allows "pain or suffering incidental to lawful sanctions" and "statements ... obtained by coercion" — think administration-approved methods of torture. We are being told that this action is preventive medicine to heal a world gone wrong. Question now: with this fix in place, what's the prognosis for the patient?

To begin answering that question, imagine the following scenario: your son Michael (or daughter Michelle) is in Florida on vacation; you speak to him via cellphone when he arrives at the airport and he is waiting in line to check his bags. You go to your local airport at arrival time to pick him up and he never appears. You call all the relevant authorities, including the police, FBI, CIA, and Homeland Security, and no one acknowledges having any information on your son. You go almost out of your mind; you go to the airport in Florida, interview security guards, concession stand workers, and cabbies. You learn nothing. After six months of never-ending worry gnawing at your gut, your son is dropped at your house. You learn that he was mistaken for a known terrorist by the CIA, flown to Cuba, and interrogated by being repeatedly put in a giant freezer and chilled to within an inch of his life and by being painfully deprived of sleep.

All of this would be allowed under the new act. Worse yet, imagine that the government never figures out that your son is innocent of all charges, and he never returns.

Habeas Corpus

In effect, one could say that the sick world is being given potent poison to bring about the cure sponsored by President Bush. Granted, the bill does not apparently treat citizens and foreigners equally, and the harshest treatment would generally be doled out to foreigners, but is the bill something we want to inflict on ourselves or others? Can we justify it by saying that the majority of those scooped up will be terrorist killers who deserve what they get? Let's look at what the bill would do.

A component of this bill that has attracted the attention of legal commentators and civil libertarians alike is that part which authorizes the president to suspend the right of habeas corpus. Habeas corpus is Latin for "you have the body." It grants prisoners the right to request from a judge the reasons for his incarceration. Article 1, Section 9 of the United States Constitution plainly states: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Despite the Constitution's clear restriction on the suspension of this bulwark of liberty, the bill states:

No court, justice, or judge shall have jurisdiction to hear or consider any claim or case of action, including an application for a writ of habeas corpus, pending on or filed after the date of enactment of this Act, against the United States or its agents, brought by or on behalf of any alien detained by the United States as an unlawful enemy combatant, relating to any aspect of the alien's detention, transfer, treatment, or conditions of confinement.

Torture

The act gives President Bush the power to define for American interrogators behavior that does or does not constitute torture, physical and mental pain, or serious coercion. Admittedly, according to the black letter of the Military Commissions Act, evidence obtained by torture is inadmissible against the suspects. But what constitutes torture?

The legislation leaves it up to the military judge to decide whether or not the coercive methods used to elicit evidence from detainees constitutes torture. The act instructs the judge to weigh the "totality of the circumstances" surrounding the garnering of the prisoner's testimony in making this crucial determination. This sort of ad hoc determination of what is and is not torture is unsettling and capricious. Remarkably, these parameters will be the only binding guidelines for the CIA and others responsible for gathering intelligence from detainees, regardless of principles of the Geneva Convention, rulings of the Supreme Court, or constitutional prohibitions to the contrary.

Geneva Convention

This act dismisses outright the limitations and guarantees provided by the Geneva Convention, as well. After the vote, Senator Lindsey Graham (R-S.C.) tried to make the act sound as if it never comes close to skirting the line in the area of personal legal protections: "America can be proud. Not only did she adhere to the Geneva Conventions, she went further than she had to, because we're better than the terrorists." But his statement didn't even hold water with the military lawyers who would be charged with operating the tribunals. Several commented on Common Article 3 of the Geneva Convention. Article 3 (called "Common Article 3" because it is common to all four of the conventions) proscribes the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

In addressing this issue before a Senate committee, Brigadier General James C. Walker, Staff Judge Advocate General (JAG) for the Marine Corps, lamented: "I'm not aware of any situation in the world where there is a system of jurisprudence that is recognized by civilized people, where an individual can be tried without, and convicted without seeing the evidence against him. And I don't think the United States needs to become first in that scenario."

This new law clearly ignores General Walker's concern. Specifically, the law declares: "It generally is neither practicable nor appropriate for combatants like al-Qaeda terrorists to be tried before tribunals that included all of the procedures associated with courts-martial."

Brigadier General Walker's warning voice was but one in a respectable chorus of credible opponents harmonizing in their condemnation of the unconstitutional and unjust aspects of the new law. None of the parts of this song sound as persuasive as that of the officers of the armed forces justice system, known as the Judge Advocate General (JAG) Corps. These uniquely interested and informed military legal experts adamantly oppose several key aspects of this new legislation.

Referring to the new law's provision that a detainee is not allowed to see the evidence presented against him, Rear Admiral Bruce E. MacDonald, the Navy's top lawyer, echoes his colleague's sentiments: "I can't imagine any military judge believing that an accused has had a full and fair hearing if all the government's evidence that was introduced was all classified and the accused was not able to see any of it."

Not to be left out of the battle, the Air Force's chief lawyer, Major General Jack Rives, flew into the fray and dropped a bomb on the MCA, declaring that the commissions established by the act do "not comport with my ideas of due process."

Are You an Enemy Combatant?

Americans would be forgiven for naively believing that while the threats to liberty in the MCA tip-toe toward tyranny, they will only be used toward that end against those with at least diaphanous ties to terrorism. Namely, they would be employed to protect Americans from that group of n'er-do-wells known as "unlawful enemy combatants." In language that is sure to shake your sense of safety, the following is the MCA's definition of an "unlawful enemy combatant":

The term "unlawful enemy combatant" means: (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, 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.

Notice that this definition contains no exception for Americans; it throws the blanket over citizen and alien alike by using the word "person" rather than "alien." Jose Padilla found this out firsthand.

Jose Padilla is an American — born in New York and raised in Chicago. On May 8, 2002, he was arrested in Chicago after returning from Pakistan upon suspicion of being linked to the September 11, 2001 terrorist attack. Padilla's attorney immediately filed a habeas corpus petition with the United States District Court for the Southern District of New York, seeking to invoke his client's constitutionally guaranteed right to be informed as to the justification for his confinement. The court denied Padilla's petition citing the president's authority to designate any person, citizen or alien, an "enemy combatant" and to detain such person indefinitely.

Padilla appealed this decision to the 2nd Circuit Court of Appeals. The appellate court held that the president had no such authority. The administration then appealed this ruling to the Supreme Court, where the justices were called to consider the legitimacy of the president's power to suspend the constitutional protections of the due process of law from an American citizen. The court meekly dodged this issue, however, and remanded the case back to the district court for dismissal without prejudice. Admittedly, Jose Padilla has a history of criminal behavior, and he was no poster boy for the law-abiding, but the rights set out in the Constitution are designed to protect all Americans, likeable and detestable.

Another character ensnared in the "illegal enemy combatant" net was Yaser Esam Hamdi. Hamdi was born in Baton Rouge, Louisiana, to Saudi Arabian parents. In 2001, Hamdi was captured by the Afghan Northern Alliance and subsequently handed over to the U.S. military. Hamdi was accused of being a member of the Taliban regime, but he and his family argued that he was in Afghanistan as an aid worker and had been erroneously detained.

Undeterred by his parents' testimony, Hamdi was shipped to the detention facility at Guantanamo Bay, Cuba. Later, he was transferred to a brig in South Carolina. In June of 2002, a petition of habeas corpus was filed on Hamdi's behalf by his father. The court ruled that the petition was proper and granted Hamdi's father standing to act in the place of his son. The Fourth Circuit Court of Appeals reversed that decision, however, ruling that the "security interests" of the country outweighed Hamdi's right to file a habeas corpus petition. Upon remand, the lower court denied the government's motion to dismiss Hamdi's petition. The court requested evidence from the government that would prove Hamdi's alliance with the Taliban and his designation as an "unlawful enemy combatant."

The government refused to comply with the court's order, and appealed the request to the Fourth Circuit. Remarkably, the Court of Appeals held that the president's power to make war (is this not a power delegated in Article I, Section 8 of our Constitution exclusively to the Congress?) prohibited a court from interfering in matters of national security. The decision was appealed to the Supreme Court.

Although the Supreme Court's opinion in Hamdi is diffuse and complicated, eight of the nine justices agreed that the Constitution proscribes the Executive Branch's attempt to hold indefinitely an American citizen and to deny him the protections of the Bill of Rights with regard to the due process of law.

Could a completely innocent person also be ensnared? Yes. Khalid al-Masri, a German citizen, was abducted in 2003 while he was on vacation, taken to Afghanistan, and interrogated and tortured for five months before the CIA figured out that they had abducted a completely innocent man who just happened to have the same name as a wanted terrorist. (Why the CIA thought that a well-known terrorist would have been traveling and vacationing using his own name is anybody's guess.)

Passage of the MCA was pushed by the current administration in a bid to get congressional approval of all the illegal actions that they had already been taking, obviously banking on the idea that if they could get congressional approval, they would also get Supreme Court approval.

Prognosis: Long-term Suffering

The Military Commissions Act of 2006 is an eradication of the most basic protections of liberty enshrined for over 200 years in our sacred Constitution. The all-encompassing powers granted to the president by this law potentially forbid any man, woman, or child deemed an enemy of the administration or its policies from seeking judicial relief from unlawful imprisonment. Most terrifying of all, this law enthrones President Bush — and his successors, whether Democrat or Republican — as the ultimate arbiters of justice to those suspected of being America's enemies. You can only hope that that person is not you.

Those who fail to see the dire gravity of this legislation and who prefer to take refuge in the naive partisan belief that President Bush and the Republican Congress would never abuse this tremendous power, should contemplate well the fact that both the White House and Congress may very possibly change to Democrat control in the near future. Then will the supporters of the Bush administration's grasp for power have a leg to stand on to even protest, let alone stop, dictatorial exercise of the same power under a Democrat regime run by Clinton, Feinstein, Boxer, Pelosi, Schumer, and the like?

This law, as well as other recently chronicled usurpations, sacrifices the due process of law on the altar of absolutism. There can be but one final obstacle to complete executive power — the people of the United States of America. We must hold every member of Congress accountable who voted for this unprecedented and unconscionable breach of our constitutional rule of law, and we must seek out and support men and women determined to uphold the federal oath of office and courageously defend the Constitution against all enemies — foreign or domestic. If we do not do this, are we really better than the terrorists?