Falling off a cliff
All anyone needs to do is read the excellent NY Times editorial, “Rushing off a cliff.” Here are just a few of the major problems with the bill as outlined in that editorial:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.
Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
The United States is rushing headlong into neo-fascism. We cannot shrink back from using such strong language; we have to call a spade a spade. If the government denies habeas corpus to anyone at any time, we can confidently declare that the country has fallen into a kind of governmental dictatorship.
A woman in my theology class is a former FBI agent whose brother is one of the U.S. antiterrorism leaders. But she explained how he is so scared now of what the U.S. is doing under Bush’s leadership that he wants to resign. People who are doing ordinary petty crimes are now liable to the accusation of terrorism. One of the recent antiterrorist operations (which is really a government fabrication) concerned a group of people who were selling tobacco illegally. Five years ago this would have been a minor story about cigarettes. But because there were ties to people who had connections to those who are suspected of terrorism, these people were labeled as terrorists themselves. According to the MCA, terror detainees can be held and convicted without trial. In other words, terror suspects can be denied their basic constitutional rights. More importantly, U.S. citizens may be denied their constitutional rights if the government deems them to be “illegal combatants,” according to Section 948a(1).I urge people to read a couple articles at Balkinization, an excellent blog run by a professor of law at Yale University. First, read, “What Hamdan Hath Wrought,” which has some key insights:
Viewed from one perspective, Hamdan was nothing more than a democracy-forcing decision that required the Administration to prove that Congress supported what he was doing. The President pushed through a bill that did just that. Viewed from another perspective, the Military Commissions Bill was nothing less than a smackdown of the Supreme Court; the Congress withdrew habeas review for aliens (and all other forms of review except for the appeals of military commissions and Combatant Status Review Tribunals (CSRTs) mentioned above), limited the enforceability of Geneva, insulated previous and future practices from criminal sanction, and made the President the final interpretive word for non-grave breaches of Common Article 3. ...Then read, “Does the Military Commissions Act apply to citizens?” in which Balkin states up front:
First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly. ...
Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn't, he didn't want to be held to account for it in any court proceeding. But the fact that the courts can't offer a remedy doesn't mean, I repeat, that the President has no duty to obey the law. And although he now has virtually conclusive authority to interpret non-grave breaches of Geneva, he does not have virtually conclusive authority to interpret either the Bill of Rights or the McCain Amendment.
We have a moral duty to oppose what is happening in our country today. To sit back and allow such things to take place is to support them. I do not have the experience or the resources to know how I can be involved, but I hope to contribute to some sort of protest through posts like this one. Finally, as the church that confesses Jesus to be the only Lord and Savior, we must deny the claim of the president to be the sovereign of this land. We must deny his claim to power, and affirm Christ’s sole authority. We must deny the kingdom of this world that says “might is right” and “U.S. freedom is worth preserving at any cost,” and we must instead affirm the Kingdom of God, which nullifies all other kingdoms. As the church, we confess that God alone lays claim to our lives, because it is in God alone that we find new life. As the church of life, we thus are called to stand against the empires of death. This is our calling. May we walk in steadfast obedience as we seek the glory of God.
(1) Yes, a few parts of the MCA do apply to citizens; and
(2) the MCA is probably unconstitutional in many of its applications to citizens; and
(3) some constitutional applications of the MCA to citizens are deeply troubling.