They Hate Our Freedom: The Truth about the Military Commissions Act

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By Aaron Sussman

On October 17th, with Dick Cheney, Alberto Gonzales, and Donald Rumsfeld standing behind him, George W. Bush solemnly announced, â€œin memory of the victims of September 11th, it is my honor to sign the Military Commissions Act of 2006 into law.â€

It is apt that Bush invoked a terrifying assault on America as he signed the Military Commissions Act (MCA), legislation that chisels away at our civil liberties, abets and immunizes top-level torturers, and strikes at the core of American values and tradition. The message that Bush gave when he signed the Defense Bill in 2005 is now truer than ever:


â€œOur enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we.â€

â€œIn memory of the victims of September 11th,â€ Bush passed a law that Robyn Blumner of the St. Petersburg Times calls â€œan obscenity against liberty and decencyâ€ and that the Executive Director of the American Civil Liberties Union (ACLU) calls â€œunconstitutional and un-American.â€ A fitting tribute indeed for the victims whose names have been manipulated by this administration to justify everything from invading Iraq, to the USA PATRIOT Act, to torture, to tax cuts. This â€œhonorâ€ to the victims of September 11th is a national disgrace for which the Bush administration, both houses of Congress, and the media are to blame.

While the White House struggles to convince the nation that the MCA is perfectly legal and essential in order for the CIA to continue â€œone of the most successful intelligence efforts in American history,â€ the true implications of this act must be made clear. Out of the many dubious clauses in the act, the most egregious is the one that eliminates the writ of habeas corpus (the right to challenge the legality of oneâ€™s imprisonment), a fundamental right that dates back to the Magna Carta. In his First Inaugural Address in 1801, Thomas Jefferson said, â€œFreedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government." Ironically, the Supreme Court case, Hamdan v. Rumsfeld, which held that Bushâ€™s original military tribunals were illegal and made the Congressionally approved MCA necessary, would never have occurred if the MCA had been in effect, as it was petitioned by a detainee.


According to the MCA, â€œNo court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.â€

This allows the President to seize a person who is in this country legally and detain that person indefinitely. Who, though, exactly are these â€œenemy combatants?â€

The MCA says, â€œThe term â€˜unlawful combatantâ€™ meansâ€¦a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United Statesâ€¦ or a person whoâ€¦ has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the president of the secretary of defense.â€

With such vague language as â€œpurposefully and materiallyâ€ and such ambiguous standards as â€œanother competent tribunal,â€ it is not difficult to foresee the grave violations of human rights that the state can commit. According to Yale Law Professor and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism Bruce Ackerman, the MCA â€œauthorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.â€

One of the few vociferous opponents of the MCA in the Senate, Patrick Leahy of Vermont, presented this chilling scenario: â€œImagine, you are a law-abiding, lawful permanent residentâ€¦.You do charitable fund-raising for international relief agenciesâ€¦.Then one day there is a knock at your door. The government thinks that the Muslim charity you sent money to may be funneling money to terrorists, and it thinks you may be involvedâ€¦.You are brought in for questioningâ€¦.You ask for a lawyer. But no lawyer comesâ€¦ Then youâ€™re sent to GuantÃ¡namo. And then nothing, for years, for decades, for the rest of your life.â€

Does giving money to this hypothetical charity fit the definition of â€œpurposefully and materially?â€ Of course it does, because all the term really means is that Bush has, what Thomas Jefferson School of Law Professor Marjorie Cohn calls, â€œthe power of a dictator.â€ According to Molly Ivins, â€œone person has already been charged with aiding terrorists because he sold a satellite TV package that includes the Hezbollah network.â€

Once you are detained and denied the writ of habeas corpus, you effectively have no protections, no counsel, and no rights. Bush has repeatedly emphasized that â€œwe do not tortureâ€ and â€œfreedom from torture is an inalienable human right.â€ This is only true if you allow the Bush administration to define â€œtorture,â€ a definition that has become so nebulous that it might as well be changed to â€œwhatever techniques are not being used by the U.S.â€

The MCA gives the President the authority to define and apply Common Article 3 of the Geneva Convention, which refers to the treatment of detainees, and reconfigures the War Crimes Act to expunge this nationâ€™s crimes. The MCA, according to Amnesty International, will â€œnarrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute â€˜outrages upon personal dignity, particularly humiliating and degrading treatmentâ€™ banned under [Common Article 3].â€ This is a considerable relief for the torturers in our government. According to the Huffington Postâ€™s Aziz Huq, â€œthe Bush administration has gutted the no-torture rule. It has added the requirement that a person â€˜specificallyâ€™ intend to cause the pain that amounts to tortureâ€¦.It means that any government agent who says his goal was to get information, not to cause pain, hasnâ€™t torturedâ€¦.â€

The Bush administration, then, does not think it is torture when federal government employees engage â€œin acts such as soaking a prisonerâ€™s hand in alcohol and lighting it on fire, administering electrical shocks, subjecting prisoners to repeated sexual abuse and assault, including sodomy with a bottle, raping a juvenile prisoner, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisonerâ€™s ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-to-feet in a fetal position for 24 hours without food or water or access to a toilet, and breaking a prisonerâ€™s shoulders.â€ Combine those horrors with what other countries do to suspects seized by the U.S. under the â€œextraordinary renditionâ€ program, and Americaâ€™s shameful role as a violator of human rights is illuminated.

Yet, we are consistently told that opposing these acts and maintaining a basic level of humanity and decency is tantamount to treason. Speaker of the House Dennis Hastert claimed that opponents of the MCA are â€œputting their liberal agenda ahead of the security of Americaâ€ and that Democrats â€œwould gingerly pamper the terrorists who plan to destroy innocent American lives.â€ According to Hastert, we have the false dilemma of either â€œgingerly pamper[ing] the terroristsâ€ or of criminally stripping Americans and non-Americans of their rights, torturing them, and committing the brutalities and excesses of tyrants. This is one of the many logical fallacies employed by the GOP leadership to misconstrue the terms of the debate and cause people to vote out of fear; a strategy that weakens this country and undermines democracy.

The media, which has been uncritical and complicit in regard to torture has failed its democratic obligations once again with the MCA. When the legislation was first introduced, the media considered the â€œsubstance a yawnâ€ and preferred to â€œfocus on the sexy rift between George Bushâ€™s White House and those roguish Republican mavericks headed by John McCain.â€ Michael Ratner, who is the President of the Center for Constitutional Rights, pointed out on the Fairness and Accuracy in Reporting radio show CounterSpin that â€œThere was no internal rift about habeas corpus, which was barely covered in the press.â€ By pitting these two ideologically-similar contingents against each other as the only two sides of the debate, the media effectively erased the massive criticism leveled by Constitutional law experts, human rights activists, watchdog groups, and everyone else who has a stake in preserving civil liberties and international law.

By the time the press addressed the real issues concerning the MCA, it was too late. A New York Times editorial titled â€œA Dangerous New Orderâ€ calls the MCA â€œan unconstitutional act.â€ Unfortunately, the editorial, which could have influenced votes in the House and Senate, was run after the act was signed. The editorial also erroneously states, â€œThe law does not apply to American citizens, but it does apply to other legal United States residents.â€ In fact, as Robert Perry of Consortium News points out, the Act states that â€œAny person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.â€ Another inaccurate statement was made on Fox News Special Report with Brit Hume, when Major Garrett said, â€œthis bill does give detainees the right to appeal their status as enemy combatants, just not before civilian courts. They can appeal to a court of military review.â€ Detainees do not all have procedures to challenge their detention in court, an error that was addressed by the media watchdog group Media Matters.

The seamless couplings of the Bush administration, both houses of Congress, and the media, combined with the powerlessness of the judiciary, exposes this new era of anti-democratic collusion and the dissolution of â€œchecks and balances.â€ It is a harsh blow to democracy when the criminals in the highest offices of the government prove they are not criminals by changing the laws that they violated. The strategy of those who made the MCA into law is to erase their past crimes to pave the way for new ones. The MCA effectively immunizes government officials against allegations of torture and other war crimes. Surely this was a consideration when Alberto Gonzales told Bush that denying the Geneva Conventions would â€œsubstantially reduce the threat of domestic criminal prosecutions under the War Crimes Act.â€

Rosa Brooks wrote in the Los Angeles Times,â€œItâ€™s far too late for Bush to have a legacy that wonâ€™t be a source of shame to future generations. So heâ€™s going for second best: a congressionally delivered get-out-of-jail free card.â€ This â€œget-out-of-jail free card,â€ while giving the Bush regime tyrannical powers and immunity for past crimes, has the reverse effect for all the co-conspirators who let Bush hurt this country: Congress (and all those Democrats who voted â€œayeâ€ ), the media, the courts, and, of course, we, the voters, all of whom are now more culpable than ever. The MCA is the latest link in a chain that increasingly shackles democracy and progress, that tarnishes the rights and dignity of every person in every country, and that, with every new link, makes us more complicit accomplices to the crimes committed by our government, by the ones who hate our freedom.


In a State Department Foreign Press Center Briefing, John Bellinger, the Legal Advisor to the State Department said: â€œAnd with respect to the Military Commissions Act, which is extremely complex, hard to understand, as wonderful a job as you all do in reporting this in the press, it is hard to understand the details of the law unless one gets down, lawyer to lawyer, to explain it.â€


How Congress Voted on the MCA:

Tell Congress What You Think:

Organizations that Defend the Constitution:

About Habeas Corpus

Law Reviews:

About Torture

Democrat Senators: Carper (D-DE), Johnson (D-SD), Landrieu (D-LA), Lautenberg (D-NJ), Lieberman (D-CT), Menendez (D-NJ), Salazar (D-CO), Rockefeller (D-WV), Nelson (D-FL), Nelson (D-NE), Pryor (D-AR), Stabenow (D-MI)


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