Weekend Edition (CounterPunch)
October 14-15, 2006
Soulless New World
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.
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