Sayonara to Checks and Balances?

[one...two...tree 2,762]

"Checks and balances" has a nice ring. But it's a currency that doesn't go a long way in Washington today.

The Military Commissions Act of 2006, of MCA, passed by the House and Senate is a wholesale assault on the idea of a limited government under law.

It will be taken by the Bush Administration as a blank check to torture, to detain indefinitely without just cause, and to trample the values that win America respect in the world. From tomorrow, counter-terrorism is the "land of do as you please" for the President and the wise men of the Defense Department -- those savants who brought you Iraq, the gift that keeps on giving (at least if you're a jihadist).

The MCA comprehensively assaults two ideas: The idea of checking executive power by laws. And the idea of a separate branch of government ensuring those limits are respected. These are the basic tools of accountability. The MCA frontally attacks both of these -- although only time will tell whether it succeeds.

How does the Military Commissions Act assail checks and balances? Consider the key issues of detention and torture.

The MCA says nothing explicit about the detention power. Indeed, I would argue that nothing in the legislation ought to be read to imply

Here's how the Addington play for detention power will work. The opening definition of the Act describes elaborately what an "unlawful enemy combatant" is. Why? The term is a neologism. The laws of war do not use or define this term. Indeed, it is a mutation of a phrase used in a subordinate clause of a 1942 Supreme Court opinion. Nothing else in the Act directly turns on this definition--although only an "alien unlawful enemy combatant" can be subject to trial by military commission. So why bother with the elaborate definition? And why extend the definition to U.S. citizens as well as non-citizens?

Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld decision, stated that an "enemy combatant" captured in hostilities could be held for the duration of those hostilities. The Court made very clear it was talking about only the limited context of the ground war in Afghanistan, not some amorphous and unending "war on terror." But Addington et al. will, however, take Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a detention power that applies anywhere and anytime.

There are two ways in which you -- citizen or non-citizen, resident of Topeka or Timbuktu -- can become an "unlawful enemy combatant."

The first way is if you engage "n hostilities" or "purposefully and materially support" hostilities. This sounds reasonable enough until you realize that no-one has the slightest clue what it means to "purposefully and materially support" hostilities. Do you need to intend to aid the hostilities? Or is it enough to intend to give the support? Would purposely giving to a charity that then gave money to Hamas count, even if you knew nothing about the Hamas? What about writing an editorial that gave "aid and comfort" to the enemy -- say, by criticizing the Administration's Iraq policy?

The second way is -- if it's even possible -- more dangerous: You are designated an enemy combatant by a Combatant Status Review Tribunal -- the Potemkin proceedings jerry-rigged at Guantánamo -- or you are designated by "another competent tribunal" created by the Defense Secretary.

It's the latter that catches in the throat, because the MCA does not define what Rumsfeld's "competent tribunal" must look like. Rummy himself with the always-fair-and-impartial Addington? Five Syrian torturers (like the ones to whom the U.S. sent the hapless Canadian Maher Arar)? A bunch of guys who flip coins for your liberty? Sure, why not? The MCA doesn't stop the executive from using any of these, provided Rumsfeld gave them power and hence made them "competent."

At least for non-citizens, moreover, that would be that: For the first time in U.S. history, an Act of Congress singles out a group of persons--non-citizens--and deprives them of any right to challenge their detention wherever they are picked up. No non-citizen would, the MCA seems to say, be able to challenge this detention. And while citizens are certainly entitled to a hearing, the Government will fight tooth and nail to make sure this hearing doesn't allow any effective inquiry into the facts on which a detention is based. So no judicial review -- and no accountability.

The same dynamic is at play in the anti-torture rules. The MCA alters a criminal statute called the War Crimes Act, which imposed criminal sanctions for certain violations of the laws of war.

Until recently, the United States could proudly point to a long history of supporting a universal ban on torture, and to a strong record in ensuring that those who in fact tortured did not escape accountability. No longer. Now a gamut of horrendous kinds of treatment will be non-criminal -- and, the Bush Administration will argue, within the discretion of the President.

Start with the substantive anti-torture rules themselves (which cover both torture and the lesser "cruel and inhuman" treatment). The MCA contains an incredibly complex and convoluted set of definitions. Despite all the cant about clarity, the rules no longer in plain English -- as they were in Common Article 3 of the Geneva Conventions -- and they are so full of holes they might have been tortured themselves.

Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.

First, "cruel and inhuman" treatment is defined as acts that cause "severe or serious" pain. We know "severe" is worse than "serious" because "severe" is used to define torture (yes, we'll get there in a moment). But then "serious pain" is defined as "bodily injury" that causes "extreme physical pain." So "serious" pain is only "extreme" pain? Isn't extreme worse than serious? It would seem so--but the MCA is deliberately confusing and circular.

And why the reference to bodily injury? Does that mean that hypothermia and long-time standing and those other wretched "enhanced" techniques more fitting for Stalin's gulags than American facilities are not criminal? Well, yes, I reckon it does.

Second, in another convoluted section, "serious mental pain" is defined in terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a detainee, or to rape his spouse and his children -- all long-recognized as forms of torture -- that's not torture; it's not even the lesser "cruel and inhuman" treatment.

Finally, the torture statute itself. Almost unnoticed, the Bush Administration has gutted the no-torture rule. It has added the requirement that a person "specifically" intend to cause the pain that amounts to torture. This technical change--foreshadowed in the August 2002 OLC memo -- has tremendous implications. It means that any government agent who says his goal was to get information, and not to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information -- well, that's just dandy.

Once again, it's not just the substantive rules that have been assailed: It's also the mechanisms to ensure the rules are followed. Under the MCA, there is no accountability for torture. The MCA cuts off courts' power to hear claims of torture by aliens held as "unlawful enemy combatants." And it vests the President with power to interpret the relevant laws of war. So if he says that "cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the matter.

There are two reasons for hope. First, any reading of the Act that reaches an untrammeled detention power may be unconstitutional. The Supreme Court in the 2004 case of Rasul v. Bush -- in what one day will be called "famous footnote 15" -- strongly hinted that even non-citizens captured overseas have Due Process rights. Combined with another clause of the Constitution called the Suspension Clause, this means the unchecked detention power and the jurisdiction-strip are likely unconstitutional.

Second, even if the War Crimes Act has been amended, the Due Process Clause also ought still to protect detainees held overseas: Torture is un-American. It's also unconstitutional--and that doesn't change depending on where it's done. Moreover, the law of war, embodied in the Geneva Conventions, is clear: There is no "specific intent" requirement for torture. Countries -- whether it's the United States or North Korea -- cannot unilaterally define down the rules against torture.

"Unchecked and unbalanced" government -- I argue at length in a forthcoming book-- is antithetical to American government. The MCA is also anathema to our best traditions. We must hope it is our traditions that win, and not the selfish partisan posturing that animated this week's votes.

Aziz Huq is co-writing a book on national security and the separation of powers called Unchecked and Unbalanced, to be published by the New Press.

[jjjimmy 0]

i cannot understand why more people are up in arms about what they are doing.i feel like we are losing everything that we stand for and nobody cares!!!

[one...two...tree 2,762]

i cannot understand why more people are up in arms about what they are doing.i feel like we are losing everything that we stand for and nobody cares!!!

Hopefully someone will legally challenge it's constitutionality and once the Supreme Court makes a ruling on it, we can say sayonara to such rogue laws.

[jjjimmy 0]

the problem is half of the voting public agree with what they are doing,its not only the people in power that think this is ok its also the people in thier party .the current political climate is such that as long as you change things in the name of security its OK to give up on everything we believe in.

[Caladan 19]

It hasn't been reported much. This is really a travesty; the suspension of habeas corpus for foreign nationals makes a mockery of our justice system. And you can be an enemy combatant by 'aiding' an organization, too.

Which means, in theory, an American citizen who has never left the country, could be picked up for donating to a charity, shuttled off to a secret prison, and while as a citizen he'd have a right to a trial, since there's no hearing generally available to detainees, he has to hope the guy waterboarding believes him when he's an American citizen.

If you're a foreign national, you don't even have the right to a trial if the government declares you an enemy combatant. Easy, you say, don't be an enemy combatant; but what if they make a mistake? You're travelling home via airport and there's a name hit and they arrest you. How do you correct mistakes when there are no hearings?

Seriously, we get receipts when we send cases to the service centers so we can track our case if they screw up; but we're just willing to accept that the government won't make any mistakes and they'll only detain and torture bad guys?

Since when does being American mean trusting the government?

I expect the bill will be overturned, but that could be two or three years down the road.

[jjjimmy 0]

please tell me why half of the people in this country support this administration?

i have my own thoughts on this but would like to have input from others.

[Saddle Bronc 124]

the problem is half of the voting public agree with what they are doing,its not only the people in power that think this is ok its also the people in thier party .the current political climate is such that as long as you change things in the name of security its OK to give up on everything we believe in.

I challenge you on "half the voting public agree...". A good percentage of those eligible to vote are too apathetic to exercise this right (of course, you could argue that it's "agreement by deliberate ignorance").

[almaty 19]

the problem is half of the voting public agree with what they are doing,its not only the people in power that think this is ok its also the people in thier party .the current political climate is such that as long as you change things in the name of security its OK to give up on everything we believe in.

I challenge you on "half the voting public agree...". A good percentage of those eligible to vote are too apathetic to exercise this right (of course, you could argue that it's "agreement by deliberate ignorance").

good point brother sriniv..and those chopf##ks who don't vote.. are just that

[Mr. Big Dog 10,747]

Oh relax, guys. Honestly, there haven't been any checks and balances for years. This act does nothing but formalizing what we've been having for the past few years. "Swear to uphold and defend the constitution" my #######, Mr. Bush. That's goes to him and his spineless Republicans in Congress as well.

It's a shame what they are making out of this country. We keep going like this and Osama has won no matter how many trillions we transfer from our grandkids to today's execs at Halliburton and Co. Osama is effectively destroying our way of life as we knew it and everything this great nation once stood for. He found just the moron to do his work. Great Job, Mr. President! Great Job indeed...

[LaL 418]

the problem is half of the voting public agree with what they are doing,its not only the people in power that think this is ok its also the people in thier party .the current political climate is such that as long as you change things in the name of security its OK to give up on everything we believe in.

I challenge you on "half the voting public agree...". A good percentage of those eligible to vote are too apathetic to exercise this right (of course, you could argue that it's "agreement by deliberate ignorance").

good point brother sriniv..and those chopf##ks who don't vote.. are just that

hey I am fine with chopf#cks that dont vote. I would summize a good % do not know the issues. I was so disgusted in 2004 a girl I worked with told me she didnt know anyone on the ballot (save presidental) so anytime there was a female, she voted female. If male she would vote fo the best name. I just walked away.

[Caladan 19]

I expect a lot of people wouldn't be able to define habeas corpus, so I think when people say 'this suspends habeas corpus!' people think 'oh, so that means the terrorists won't win?'

[one...two...tree 2,762]

Oh relax, guys. Honestly, there haven't been any checks and balances for years. This act does nothing but formalizing what we've been having for the past few years. "Swear to uphold and defend the constitution" my #######, Mr. Bush. That's goes to him and his spineless Republicans in Congress as well.

It's a shame what they are making out of this country. We keep going like this and Osama has won no matter how many trillions we transfer from our grandkids to today's execs at Halliburton and Co. Osama is effectively destroying our way of life as we knew it and everything this great nation once stood for. He found just the moron to do his work. Great Job, Mr. President! Great Job indeed...

Exactly. Terrorists aren't out to conquer through force, but with fear...and by that token they have succeeded. Where's FDR when you need him...somebody should dig him up from grave and see if his bones would chatter those infamous words, "There's nothing to fear but fear itself."

hehehe...I found these other FDR quotes that fit right with this...

Let us never forget that government is ourselves and not an alien power over us. The ultimate rulers of our democracy are not a President and senators and congressmen and government officials, but the voters of this country.

If you treat people right they will treat you right... ninety percent of the time.

Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.

The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the goverment.

God Bless, FDR

Edited September 30, 2006 by Steven_and_Jinky

[jjjimmy 0]

i agree that maybe not half the people think like the administration but half the voting public do so the result is the same.i feel like we are failing by not standing up in numbers to defend our way of life

after all it is changing right in front of US!!!!!!