Habeas Corpus

Several times this week, I've sat down for several hours at a stretch to research the Military Commissions Act of 2006. I've now read the entire thing and it scares me. Scares me because of the unchecked power it confers onto the office of the Presidency. Scares me because a Congress full of our governmental representatives didn't care enough about our rights and principles to stop it. Scares me because so many citizens don't know what's in it and those who have an inkling don't seem to care.

If you want to read the text of the bill, you can find it here.

The Act abolishes Habeas Corpus for detainees deemed to be "Unlawful Enemy Combatants" (UECs). It allows compulsory self incrimination in trials for them. It allows the President to decide what does and does not violate the Geneva Convention, and disallows the Military Commissions from considering them during trials for those UECs fortunate enough to eventually make it to trial.

And it allows the President, with very little real obstacle (just an ill-defined "Tribunal" which the President himself empowers), to declare anyone a UEC and strip them of rights to Habeas Corpus (the right of any prisoner of the United States to challenge their incarceration in a court of law).

Many sections of the Act specify alien UECs, but in some areas (for instance, the area in which the President defines who is a UEC), there is no distinction between American Citizens and foreign nationals.

And even postulating for a moment that George W. Bush and his Administration have nothing but the purest of motives (something which I don't believe, but will accept as given for the remainder of this paragraph), he will not always be the President. Sooner or later, we're going to have a President without the morality or scruples to be trusted with such a blunt force weapon. Our next President, be they Democratic or Republican, may decide to wield this blade for personal gain. What happens when a President decides that he can remove his most threatening political opponents by having them declared UECs? What happens to our free press if the next President decides that half of the editorial and reporting staff of the New York Times is aiding the terrorists and has them all detained? Or if our next President is from the Democratic party and decides that Fox News and others have been acting in conflict with the good of the nation, and has Rush Limbaugh, Sean Hannity, Ann Coulter and the like all rounded up and shipped off to Guantanamo. Think it couldn't happen? The Politburo in the old Soviet Union used to do such things all the time, and we believed we'd never allow it here. But guess what? Now it's legal. Not strictly the INTENT of the law, but through its use, it could all be done completely legally.

So, I've been trying to think of how to write this blog entry. How to make it make the most sense to everyone, how to really get across the extent to which our leaders have, with this Act, severely curtailed the same freedoms which they simplistically assert are the ones the terrorists hate us for, the ones so many of our nation's soldiers have died protecting. If the terrorists really do hate us for our freedoms and try to attack us to bring them down, does it really make sense to do their job FOR them?

And in all this time, I couldn't find the right words. I wrote this post five or six times, always scrapping the results. And then tonight I watched another episode of Keith Olbermann's MSNBC show on my TiVo, and there he is giving another of his special comments on the topic. It's still not quite what I wanted to post, a bit more on the "what does this mean to our core values" and less on the specifics than I would like. Nevertheless, it comes closer to what I wanted to say than any of my previous attempts, and so I post it here for your reading. (You can find the original, along with video of Mr. Olbermann reading it, here).

With the signing of this Act into law, there is a little bit less to be proud of in being an American. The bloom on the rose has begun to wilt, the silver and brass buttons to tarnish.

Keith Olbermann speaks:

We have lived as if in a trance.

We have lived as people in fear.

And now—our rights and our freedoms in peril—we slowly awaken to learn that we have been afraid of the wrong thing.

Therefore, tonight have we truly become the inheritors of our American legacy.

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering: A government more dangerous to our liberty, than is the enemy it claims to protect us from.

We have been here before—and we have been here before, led here by men better and wiser and nobler than George W. Bush.

We have been here when President John Adams insisted that the Alien and Sedition Acts were necessary to save American lives, only to watch him use those acts to jail newspaper editors.

American newspaper editors, in American jails, for things they wrote about America.

We have been here when President Woodrow Wilson insisted that the Espionage Act was necessary to save American lives, only to watch him use that Act to prosecute 2,000 Americans, especially those he disparaged as “Hyphenated Americans,” most of whom were guilty only of advocating peace in a time of war.

American public speakers, in American jails, for things they said about America.

And we have been here when President Franklin D. Roosevelt insisted that Executive Order 9066 was necessary to save American lives, only to watch him use that order to imprison and pauperize 110,000 Americans while his man in charge, General DeWitt, told Congress: “It makes no difference whether he is an American citizen—he is still a Japanese.”

American citizens, in American camps, for something they neither wrote nor said nor did, but for the choices they or their ancestors had made about coming to America.

Each of these actions was undertaken for the most vital, the most urgent, the most inescapable of reasons.

And each was a betrayal of that for which the president who advocated them claimed to be fighting.

Adams and his party were swept from office, and the Alien and Sedition Acts erased.

Many of the very people Wilson silenced survived him, and one of them even ran to succeed him, and got 900,000 votes, though his presidential campaign was conducted entirely from his jail cell.

And Roosevelt’s internment of the Japanese was not merely the worst blight on his record, but four decades later it would necessitate a formal apology from the government of the United States to the citizens of the United States whose lives it ruined.

The most vital, the most urgent, the most inescapable of reasons.

In times of fright, we have been only human.

We have let Roosevelt’s “fear of fear itself” overtake us.

We have listened to the little voice inside that has said, “the wolf is at the door; this will be temporary; this will be precise; this too shall pass.”

We have accepted that the only way to stop the terrorists is to let the government become just a little bit like the terrorists.

Just the way we once accepted that the only way to stop the Soviets was to let the government become just a little bit like the Soviets.

Or substitute the Japanese.

Or the Germans.

Or the Socialists.

Or the Anarchists.

Or the Immigrants.

Or the British.

Or the Aliens.

The most vital, the most urgent, the most inescapable of reasons.

And, always, always wrong.

“With the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?”

Wise words.

And ironic ones, Mr. Bush.

Your own, of course, yesterday, in signing the Military Commissions Act.

You spoke so much more than you know, Sir.

Sadly—of course—the distance of history will recognize that the threat this generation of Americans needed to take seriously was you.

We have a long and painful history of ignoring the prophecy attributed to Benjamin Franklin that “those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”

But even within this history we have not before codified the poisoning of habeas corpus, that wellspring of protection from which all essential liberties flow.

You, sir, have now befouled that spring.

You, sir, have now given us chaos and called it order.

You, sir, have now imposed subjugation and called it freedom.

For the most vital, the most urgent, the most inescapable of reasons.

And — again, Mr. Bush — all of them, wrong.

We have handed a blank check drawn against our freedom to a man who has said it is unacceptable to compare anything this country has ever done to anything the terrorists have ever done.

We have handed a blank check drawn against our freedom to a man who has insisted again that “the United States does not torture. It’s against our laws and it’s against our values” and who has said it with a straight face while the pictures from Abu Ghraib Prison and the stories of Waterboarding figuratively fade in and out, around him.

We have handed a blank check drawn against our freedom to a man who may now, if he so decides, declare not merely any non-American citizens “unlawful enemy combatants” and ship them somewhere—anywhere -- but may now, if he so decides, declare YOU an “unlawful enemy combatant” and ship YOU somewhere – anywhere.

And if you think this hyperbole or hysteria, ask the newspaper editors when John Adams was president or the pacifists when Woodrow Wilson was president or the Japanese at Manzanar when Franklin Roosevelt was president.

And if you somehow think habeas corpus has not been suspended for American citizens but only for everybody else, ask yourself this: If you are pulled off the street tomorrow, and they call you an alien or an undocumented immigrant or an “unlawful enemy combatant”—exactly how are you going to convince them to give you a court hearing to prove you are not? Do you think this attorney general is going to help you?

This President now has his blank check.

He lied to get it.

He lied as he received it.

Is there any reason to even hope he has not lied about how he intends to use it nor who he intends to use it against?

“These military commissions will provide a fair trial,” you told us yesterday, Mr. Bush, “in which the accused are presumed innocent, have access to an attorney and can hear all the evidence against them.”

"Presumed innocent," Mr. Bush?

The very piece of paper you signed as you said that, allows for the detainees to be abused up to the point just before they sustain “serious mental and physical trauma” in the hope of getting them to incriminate themselves, and may no longer even invoke The Geneva Conventions in their own defense.

"Access to an attorney," Mr. Bush?

Lieutenant Commander Charles Swift said on this program, Sir, and to the Supreme Court, that he was only granted access to his detainee defendant on the promise that the detainee would plead guilty.

"Hearing all the evidence," Mr. Bush?

The Military Commissions Act specifically permits the introduction of classified evidence not made available to the defense.

Your words are lies, Sir.

They are lies that imperil us all.

“One of the terrorists believed to have planned the 9/11 attacks,” you told us yesterday, “said he hoped the attacks would be the beginning of the end of America.”

That terrorist, sir, could only hope.

Not his actions, nor the actions of a ceaseless line of terrorists (real or imagined), could measure up to what you have wrought.

Habeas corpus? Gone.

The Geneva Conventions? Optional.

The moral force we shined outwards to the world as an eternal beacon, and inwards at ourselves as an eternal protection? Snuffed out.

These things you have done, Mr. Bush, they would constitute “the beginning of the end of America.”

And did it even occur to you once, sir — somewhere in amidst those eight separate, gruesome, intentional, terroristic invocations of the horrors of 9/11 -- that with only a little further shift in this world we now know—just a touch more repudiation of all of that for which our patriots have died --- did it ever occur to you once that in just 27 months and two days from now when you leave office, some irresponsible future president and a “competent tribunal” of his lackeys would be entitled, by the actions of your own hand, to declare the status of “unlawful enemy combatant” for -- and convene a Military Commission to try -- not John Walker Lindh, but George Walker Bush?

For the most vital, the most urgent, the most inescapable of reasons.

And doubtless, Sir, all of them—as always—wrong.