Last month’s executive signing of the Military Commissions Act of 2006 marks still another dark chapter in the history of US democracy. Passed by both houses of Congress in late September and signed by George W. Bush on October 17, 2006, the Military Commissions Act authorizes the US President to round up even American citizens, label them enemy combatants and deny them their day in court – forever. The Act, as written, stands in direct violation of the writ of habeas corpus, a judicial mandate ordering that a defendant be brought to court to determine whether or not that person is imprisoned lawfully.
Under the Military Commissions Act, legal residents who are not citizens are denied access to federal habeas corpus, leaving them at the mercy of the president’s suspicions. The language in the Act would practically guarantee that a US president could never be tried for war crimes in an International Criminal Court and, if the federal courts support the president’s initial detention decision, ordinary Americans will be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials. Congress has authorized this presidential overreaching with the support of existing constitutional doctrine that allows the Supreme Court to consider congressional support a key factor in assessing the limits of presidential authority.
The organization, "Human Rights First" (HRF) has denounced the Military Commissions Act of 2006, declaring that, "by passing this law, Congress has set the United States at odds with the Constitution, the laws of war, and American values." HRF’s Washington Director, Elisa Massimino stated that, "this was the moment for Congress to pass legislation that reflects the fundamental values of this country. Instead, it rushed to adopt an ill-considered law which history will judge harshly…The many flaws in this law raise fundamental constitutional issues."
Among the Act’s more egregious aspects are the denial of an independent judicial review to detainees; the elimination of accountability for past violations of the law; the allowing of evidence obtained through coercion and granting the Secretary of Defense authority to deviate from long held standards of military justice for fair trials. Bruce Ackerman, professor of law and political science at Yale and author of "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism" wrote in the LA Times that "the legislation goes far beyond the legal struggles about foreign terrorist suspects [at Guantanamo Bay]" by authorizing the president "to seize American citizens…even if they have never left the United States…Once thrown into military prison, they cannot expect…any other of the normal protections of the Bill of Rights."
The language in the legislation is subject to interpretation, the enormity of which is breathtaking both in scope and potential impact. It gives the president almost unlimited power over citizens and legal residents, who, as Ackerman puts it, "can be designated enemy combatants if they have contributed money to a Middle Eastern charity, and…held indefinitely in a military prison."
Yet, Constitutionally regressive as the legislation may seem on its face, the Military Commissions Act is more profoundly far-reaching than the dismantling of the US Constitution.
In 2002, the US, under the Bush Administration, withdrew from a treaty to establish an International Criminal Court (ICC) charged with trying those accused of genocide, crimes against humanity, and war crimes. This despite the fact that the jurisdiction of the ICC received well over the requisite number of ratifications from other members of the United Nations. In an unprecedented diplomatic maneuver, the Bush administration announced back then that it did not consider itself bound by President Clinton’s December 31, 2000 signature on the treaty to create a permanent war crimes tribunal. The only states that actively opposed the court were the US and Libya, provoking the outrage of human rights organizations and UN member states.
The ICC’s jurisdiction went forward without George W. Bush’s signature.
Since the Bush Administration declared long ago that it had no intention of playing by the same rules it (selectively) enforces, its behavior has been eerily consistent. Still, the significance of setting such a precedent cannot be overemphasized. By allowing US military personnel and others who serve in government to torture detainees in violation of the Geneva Conventions Article 3, the Military Commissions Act, simply put, codifies inhumane and degenerative behavior.
The significance of the Act’s passage with respect to the current Administration is not so much that it is outrageous or uncharacteristic, but that it enables the president to move dangerously closer to placing himself above the same Rule of Law he so eagerly applies to everyone else. And while the Bush Administrations’ proposal to downgrade the humane treatment requirements of Common Article 3 was not explicitly included in the Military Commissions Act, there is general consensus among constitutional attorneys that its language makes enforcement of those standards far more difficult.
This sorry chapter in US history is made still sorrier by the absolute impunity with which George W Bush routinely issues his public assurances that "the United States does not torture." Like his repeated mispronunciation of the word "nuclear" or his insistence on "staying the course" in Iraq, those assurances are meant to redefine reality. In doing so, the Administration gives new meaning to the old adage that in politics a lie repeated often enough becomes truth. That Bush’s "repetition equals rightness" strategy has worked for him – at least until very recently – speaks volumes not only about the degeneration of national literacy, but that of American values.
In a world where the US finds it can no longer consume and kill its way out of crisis, staying the course is no longer an option. In the absence of that option, US leaders are at a loss for solutions, as are a wide swathe of Americans for whom consumerism has become a way of life. Having grown comfortable in their passive roles, it is understandable that many Americans are having a hard time rising to the more active role of citizen. A citizen, after all, is a "participatory member of a political community." And participation demands not only vigilance, but some degree of literacy, creativity and hard work – all anathema to consumerism and in direct contrast to the values they have been taught to embrace. Americans’ ignorance of their rights and responsibilities plays directly into the hands of a president who embodies the literal definition of the word, which means "to ignore." Americans have become easy marks for a president who has instructed them to show their patriotism by going shopping, rather than trouble themselves with active participation in a system that cannot survive without it.
The ease with which the freshly signed Military Commissions Act passed public scrutiny seems to validate once again Bush’s confidence in the passive nature of American consumers. When a barely literate president can so glibly dismantle what remains of constitutionally guaranteed civil rights by talking over the heads of the people, it’s time for a radical change. That change will need to include redefining American values as we know them.
That may not be such a bad thing.
For additional detail on Human Rights First’s concerns with the Military Commissions Act of 2005, see http://www.humanrightsfirst.org/us_law/etn/ca3/hrf-ca3-092206.html.
Sandy LeonVest is an independent journalist and Editor of the StinsonSolarTimes. Her published work can be found online by googling "Sandy LeonVest" or visiting www.leonvest.com