I am ashamed of my country today. Earlier this week, both houses of the U.S. Congress passed the Military Commissions Act of 2006, an act that future generations will surely list alongside the Alien and Sedition Acts as one of the most heinous and unconstitutional laws ever enacted by a democratically elected government. Both in letter and spirit, this law is the antithesis to the principles upon which America was founded, and it will be remembered for a very long time as a dark blot on the history of a country that has had more than enough of those in recent years already.
After the Supreme Court’s decision in Hamdan v. Rumsfeld striking down the kangaroo courts George W. Bush sought to create to try the detainees at Guantanamo Bay – courts where defendants could be convicted on the basis of hearsay, of secret evidence which the defendant was not allowed to view, and of statements obtained through torture – there was a brief moment of hope when it seemed as if our legal system might be returning to sanity. But now, in a decision of astonishing capitulation to the will of our deluded president who thinks himself a king, Congress has reauthorized many – not all, but many – of the very same provisions.
First, this bill does disturbingly little to prohibit torture of prisoners. It explicitly forbids prisoners tried before military commissions from invoking the Geneva Conventions as a source of rights, despite the fact that the Geneva Conventions were ratified by the Senate and are part of the law of the land in America. On the other hand, it explicitly permits statements obtained by “cruel, inhuman or degrading treatment” to be admitted as evidence if the presiding judge finds that “the interests of justice would best be served” by doing so. Although the bill bans some torture methods, such as rape, it leaves the door wide open to many others, and attempts to narrow the scope of the Geneva Conventions by not expressly criminalizing “outrages upon personal dignity, particularly humiliating and degrading treatment”, which they forbid.
Possibly worse is the frighteningly broad latitude the bill grants a power-mad administration in determining who will be tried before these tribunals. This bill grants George W. Bush and Donald Rumsfeld the power to hand-pick the members of a commission, to empower that commission to judge according to literally any standard they please, and on that basis, to decide that any person anywhere in the world is an “enemy combatant” and sentence them to indefinite and arbitrary detention at the will of the executive, subject to no appeal or oversight. I invite any person who still supports the Bush administration to explain how this differs in any relevant way from the absolute powers claimed by history’s most infamous dictators.
It is not clear whether even American citizens are exempt from the unbelievably broad and dictatorial powers this bill gives to the executive branch. Although the bill says that “any alien unlawful enemy combatant” is subject to military tribunal and so would seem on its face not to apply to U.S. citizens, it contains no language shielding citizens from being declared enemy combatants by the aforementioned military commissions. And once such a determination was made, does anyone believe for a moment that the Bush administration, which has already claimed and exercised the power to subject American citizens to extrajudicial imprisonment, would hesitate before making those people disappear?
Most horrifyingly, this bill claims to revoke the right of habeas corpus – a bedrock principle of the Western legal system since the Magna Carta, the principle that a person who is imprisoned has the right to challenge the basis of their imprisonment before a neutral magistrate. Section 7 of the bill states, “No 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.” Not even King George III, against whom Americans rebelled to establish our independence, had the power to hold someone without granting them the right of habeas corpus.
The suspension of habeas corpus for detainees is illegal. Section 9 of the U.S. Constitution holds, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The U.S. is neither in rebellion, nor have we been invaded. Congress has no right whatsoever to pass the bill they have just passed. America’s founding fathers held habeas corpus as vital to a free society, and its loss to signify the first step toward tyranny. It is chilling to see how vividly their warnings are now coming true.
What does shock me is the cowardly and submissive way in which the Democratic party gave in to this. Although the majority of Senate Democrats voted against the bill, the Democratic leadership failed to make any effective attempt to mount a filibuster, the only action that realistically could have stopped it. Even worse, twelve Senate Democrats voted for the bill, including the ranking Democrat on the Senate Intelligence Committee, Senator Jay Rockefeller, who complained that Bush has refused to inform Congress about the details of the interrogation program, then voted to legalize that program anyway. I still believe that the Democratic party is the only realistic force that can oppose George W. Bush, and their potential victory in the upcoming elections would be a crucial first step toward restoring this country to sanity; but their craven willingness to give in to such loathsome and anti-American laws as this convinces me that many of them need to be thrown out of office just as badly as do the Republicans. What America truly needs is a slate of honest and principled candidates who will not just give voice to progressive ideals, but will stand up and fight for them. At the moment, there are precious few of those from either party in Washington, D.C.
We could have done so much better than this. We could have established open and fair tribunals that would operate in the full sight of the world, so that all of humanity could see that we had nothing to hide and that we were better than the people who seek to destroy us. We could have made the trials of terror suspects a model of justice that would have rung out through history as an example of how the United States of America treated its enemies. Not only would such a procedure pay heed to America’s most important ideals, it would have been one of our most effective weapons in the war of ideas we are fighting against Islamic fundamentalists. It would have given us an indisputable claim to hold the moral high ground against the deranged fanatics who think nothing of mass murder, torture and terrorism waged against innocents in the service of their evil cause.
This is not a far-fetched or infeasible idea. As Senator Hillary Clinton pointed out, George Washington himself endorsed this reasoning, ordering that prisoners taken during a crucial battle of the Revolutionary War be treated humanely, even while British armies were treating American prisoners with cruelty:
Treat them with humanity, and Let them have no reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren.
The United States is now in a far stronger position than when we were a ragtag band of militias fighting against a world superpower for independence. There is no reason why we cannot meet and even improve on President Washington’s standard when it comes to the treatment of prisoners.
But we have thrown that shining opportunity away. In its place, we have erected a network of secret shadow prisons all around the world; institutionalized torture and human degradation on a sickening scale; and made the Guanantamo prison a worldwide rallying symbol of injustice, a black hole where hundreds of people have been held helpless and incommunicado for years, in a legal void of indefinite detention, without being tried or charged with any crime. We have done more to tarnish our image than Osama bin Laden’s network of jihadists ever could have.
What is a patriot to do? I am disappointed in my country, and outraged by the ignorance of the people who are presently in charge of it. And yet, because I love my country, and because I love the principles upon which it was founded, I will not now, in its darkest hour, abandon it to the fanatics who want to destroy everything it stands for. Though the harm done to innocents around the world, and the vast damage done to our international image, cannot be undone, it is not too late to reverse course and set America back on the path it was always originally intended to follow. I can only hope that the upcoming elections give us that chance.