Do You Miss Our Constitution?

Editor's note: I am moving over to post at the other blog(also see new articles below).
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Give Me Liberty

No previous American law has been as subversive as the Military Commissions Act of 2006
by Nat Hentoff

March 9th, 2007 3:13 PM

" If Americans win a war [against terrorism] and lose the Constitution, they will have lost everything. "
-– Lance Morrow, Time, March 30, 2003
"We cannot allow this [Military Commissions] Act to stand. It violates some of the most basic principles upon which human rights are founded. And we must not rest until it is no longer the law of the land in our country. "
– Amnesty International, February 2007

Ours is the oldest constitution in the world, and for more than 200 years it has survived many grave assaults from one or more of our three branches of government. For example, in 1798, only seven years after the First Amendment was included in the Constitution, Americans, under the Alien and Sedition Acts, were put in prison for holding the president up to ridicule.

The Bush administration has cumulatively done more profound damage to our founding document than any previous administration. And because the president has placed John Roberts and Samuel Alito on the Supreme Court, it may be years before we regain some of our privacy rights under the Fourth Amendment—and other of our suspended liberties.

But Bush's most wide-ranging assault on who we are as Americans is the Military Commissions Act of 2006, which he signed on October 17, 2006. As I have detailed in previous columns, this law—rushed through by the then-Republican-controlled Congress—annuls two previous Supreme Court decisions on our treatment of prisoners suspected of terrorism. It so expands the definition of "unlawful enemy combatants" (a Bush term unknown in international law) that it can also imprison longtime legal immigrants here—and American citizens—as "enemy combatants" without charge.

Only the president decides who can be held as an "unlawful enemy combatant"—and he is also in charge of the "alternative" interrogation techniques that can be used to extract evidence from them.

Moreover, the MCA prevents the use of the Geneva Conventions against any American interrogators or other personne. However, there are in our laws specific references to the Geneva Conventions—which the MCA now violate.

In Hamdan v. Rumsfeld (June 2006), the Supreme Court ordered the president to adhere to these very Geneva Conventions (of which we are a signatory) with regard to all our prisoners—including "unlawful enemy combatants." All sentences against them, ordered the Court, must be handed down by a "regularly constituted" U.S. court that "provides all the judicial guarantees recognized as indispensable by civilized peoples."

Congress overturned that Supreme Court ruling in the Military Commissions Act. And on February 20, the District of Columbia Court of Appeals upheld the section of the Act that strips all prisoners at Guantanamo of any habeas corpus access to our courts. They will be tried only by military tribunal, which will not permit them to see any classified evidence against them or contest evidence obtained just by hearsay. Nor can they confront the primary witnesses against them.

In her dissent to that D.C. Circuit Court decision (Lakhdar Boumediene, et. al. v. George W. Bush, et. al.), Judge Judith Rogers also pointed to the new law's permitting of "coercive interrogation" of detainees (which often turns out to be a euphemism for torture). But the common law, wrote Judge Rogers, "has regarded torture and its fruits with abhorrence for over 500 years."

However, we Americans have descended even farther from being "a civilized nation" in sections of the MCA described on findlaw.com by Joanne Mariner, Human Rights Watch's invaluable director of their Terrorism and Counterterrorism Program. Reading this, you may get a horrifying sense, as I have, of how deeply this administration has desecrated the core of our justice system: due process (fundamental fairness).

Keep in mind, as Mariner adds, that the MCA also allows the CIA to continue its "renditions" (kidnapping suspects to be tortured in other countries) and permits the agency to resume operating its own secret prisons ("black sites") around the world.

"The MCA," Mariner writes about prison treatment, "contains several provisions that are meant to bar the public [We the People] from ever hearing direct testimony about the CIA's abusive methods. These provisions allow the government to protect the 'sources, methods or activities by which the United States acquired evidence' if these practices are classified." Characteristically, the Bush administration insists "that all 'alternative' interrogation procedures are classified"—including "coercive" methods. (Emphasis added.)

Prisoners who have been tortured—and pressured not to reveal these classified "alternative" practices used on them—will, however, want to tell their lawyers. However, Mariner continues, the attorneys won't be able to report to the outside world any of these "classified" abuses, including the torture that their clients have told them about. Prisoners' lawyers "must turn over all their notes and documents," Mariner reports, "before they leave Guantanamo, and they can only speak about the information they have obtained from their clients after it undergoes classification review."

Therefore, none of us will know how the "evidence" used against these prisoners was extracted.

The president often declaims about the "American values" that we are defending—and which will hopefully inspire other nations. On his watch, as the MCA shows, this is what these values have become!

Rather than wait to find out whether a majority of the John Roberts Supreme Court will agree that these are indeed the values to which we must resort to prevail over the terrorists, some members of Congress are working on bills to truly Americanize the Military Commissions Act. Next week: What their changes involve. One of the proposed bills, introduced by Senator Christopher Dodd of Connecticut, couldn't be more aptly titled: "Restoring the Constitution Act of 2007."

Meanwhile, Amnesty International is so justifiably alarmed by the Military Commissions Act that "Amnesty International groups in Great Britain, Germany, Australia, and Japan are mobilizing their members and governments to help create global pressure to reverse the MCA and end other human rights abuses, including shutting down Guantanamo Bay."

Amnesty International is also, of course, mobilizing its members in this country. You don't have to be a member to write—or otherwise urgently contact your representatives and senators. New Yorkers might start with Senators Clinton and Schumer, neither of whom are in the forefront of this legislation to bring back what we used to stand for around the world.