When Americans first saw photos of Abu Ghraib prisoners — hooded, naked, terrified — few doubted they were looking at portraits of torture. On that day in the spring of 2004, Senator Lindsey Graham told the nation that the American soldiers responsible for such outrage would be brought to justice. Not just the sergeants and privates, he promised, but those at the top who failed in their duty to prevent it. So far, however, no senior officer has been charged.
And after this week, none ever will — assuming, as we do, that President George W. Bush signs into law the Military Commissions Act, which passed both houses of Congress last Friday, September 29.
This law concentrates extraordinary power in the hands of the president, allowing President Bush to identify anyone he chooses, including American citizens, as enemy combatants. As such, they can be imprisoned indefinitely, interrogated by methods approved only by the president, and deprived of any court review for their case. According to this law, any president of the United States will now be able to personally interpret the Geneva Conventions as he or she sees fit, confident that such interpretations must stand inviolate. In effect, the courts will be prevented from hearing any challenge to the president’s decisions.
And because the president is, according to the bill, able to “promulgate administrative regulations … which are not grave breaches of the Geneva Convention,” almost all the acts we saw committed in the photos of Abu Ghraib could be decreed by any president as lawful.
For those senators, congressmembers, and ordinary citizens who think such a law sounds like a good idea, I suggest they substitute the name Hillary Rodham Clinton for George W. Bush and discover how happy they feel having so much unchecked power in the hands of one human being.
Congress, by passing the bill in the final hours before it recessed, has not only proven what its harshest critics have charged — that that body has been nothing more than an emasculated rubber stamp for the executive branch — but it has successfully stripped important powers from the judiciary as well, substantially undermining our 230-year-old system of checks and balances.
From the earliest days after September 11, 2001, President Bush and his administration have sought to expand presidential power in unprecedented ways. First, the president acted according to the idea of the “unitary executive,” which is essentially a fringe leagal cover to justify the president running the executive branch of the government in any way he sees fit. Secondly, he designated a new legal category in what he calls the global war on terrorism — the enemy combatant. This person, he explained, is neither civilian nor soldier, but exists in a limbo-like state that has the legal rights of neither. Thirdly, in a memo signed by the now Attorney General Alberto Gonzales, the administration defined as acceptable any coercion short of “pain equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.”
Since the courts still had the right to hear challenges to directives issued by the president of the United States, these ideas and actions were contested in numerous cases. In 2004, the Supreme Court denied that the executive branch could deprive prisoners of any legal redress and several justices suggested that the president could not act without congressional authorization.
The Military Commissions Act, all 1,000 pages of it, was written by the Republican leadership, was lobbied for by Vice President Dick Cheney, and is intended to give the president such authority.
Of course, since we still have the right to challenge laws passed by Congress before courts to determine if they are constitutional, most experts, including several Republican senators who voted for the bill, believe that lawsuits are inevitable. “We should have done it right, because we’re going to have to do it again,” Senator Gordon Smith, a Republican from Oregon, told the New York Times recently.
In fact, attorneys for 25 men being held in Afghanistan have already launched what looks to be the first legal challenge to President Bush’s new plans for prosecuting and interrogating terrorist suspects. The court documents call for the prisoners to be released or to be charged with a crime and allowed to meet with attorneys. This is known as a habeas corpus petition, one of the oldest concepts in the history of our legal system. With the capitulation Congress made to the president, “those rights are in danger of being curtailed,” said a lawyer for the Center of Constitutional Rights, the organization that filed the petition.
So what does all this mean for the president, for Congress, for the country? For one thing, it means that we are all going to be in some serious trouble unless the voters act to change Congress, to elect representatives who will be able to stand up to the president when he or she attempts to undermine the basic principles on which this country was founded. Unless we speak with our votes, we’ll be in much worse trouble than we are in now.
It means that every senator and congressmember who voted for this bill and who is up for election in November should be defeated. For us here in Santa Barbara County, that means a “no” vote for Rep. Elton Gallegly.
It means that we all must show courage in the face of the Bush administration’s cold-blooded and, in our opinion, unpatriotic attempts to terrify the nation. We must not be so afraid that we will give up the basic rights that our country has struggled to uphold through other grave and terrible times.
If we don’t, then we will bear the consequences that other nations have experienced when they have abandoned their principles in the panic of the moment.
— Marianne Partridge, Editor-in Chief
The Military Commissions Act
What follows is a brief synopsis of some of the major legal points likely to be contested in coming months.
Enemy Combatants: The bill now legally defines an enemy combatant as anyone — including legal residents of the United States and foreign nationals living in their own countries — who has engaged in “hostilities against the United States,” including providing material support to an organization accused of terrorist activities. The president is empowered to use whatever criteria he chooses to determine whether or not people are enemy combatants.
Habeas Corpus: Enemy combatants held in U.S. military prisons or elsewhere are denied the right to challenge any aspect of their detentions in U.S. courts. Prisoners have lost legal recourse if they are tortured in U.S. custody or are wrongfully detained. The president may authorize the military to lockup any non-U.S. citizen for life without ever charging him/her with a crime or giving him/her access to a lawyer or a trial with public evidence, impartially enforced.
Military Commissions: Those enemy combatants who are tried will be before a military commission. They will not be guaranteed access to evidence used against them or to the counsel of their choice. The use of evidence obtained through coercion or hearsay is permitted at the discretion of the military judge. The secretary of defense — with no judicial oversight — will determine the procedures of military commissions, as well as who sits on them. These commissions may sentence prisoners to death.
Torture: Torture and sexual assault are redefined so broadly that it is largely up to interrogators to determine what methods are permissible. The penalty for U.S. officials who engage in the few activities specifically outlawed, such as murdering or raping a detainee, will be tried by military commission. No one — enemy combatant or otherwise — may accuse any U.S. agency or agent of violating the Geneva Conventions in any U.S. court. The president has the power to interpret and apply the Geneva Conventions, including those statutes prohibiting torture. His decisions could remain secret; the bill does not require any public listing of his approved interrogation methods.