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Under New Law, Americans Must Guard Against Abuse of Power

By Phillis D. Engelbert and Lily Jarman-Reisch

t r u t h o u t | Perspective

 

Wednesday 25 October 2006

 

Late last month, the House and Senate voted to approve Military Commissions

Act (MCA) - a bill that undermines several tenets of the US Constitution and

international law. On behalf of the board of directors of Michigan Peaceworks,

we are writing to express our alarm and dismay at the passage of this

legislation - and in particular at the " yes " votes by Senator Debbie Stabenow

and area congressmen Joe Schwarz and Mike Rogers. We urge everyone to learn the

full scope and impact of this hastily approved bill and to remain vigilant

against excesses in its implementation.

 

The MCA is so radical and sweeping that it could change the way high school

civics texts are written. Gone are guarantees that individuals accused of crimes

can know the charges against them, challenge their detention and conditions of

detention, receive a speedy trial, see the evidence against them, be represented

by a lawyer of their choosing, be treated humanely, not have evidence introduced

against them obtained through coercion, and be judged by an impartial person or

persons.

 

Gone are the checks and balances that keep one branch of government (the

executive) from gaining too much power at the expense of another (the

judiciary). The US has long been looked upon as the standard-bearer of human

rights and due process around the world. If other countries now follow our lead,

American citizens in foreign lands can expect be subjected to indefinite

detention, in cruel conditions, without recourse or access to any sort of

counsel or protection by international law.

 

The aspect of the MCA most troubling to legal scholars is its denial of

habeas corpus - the right of a prisoner to challenge his or her detention as

unlawful - to non-citizens designated " enemy combatants. " Habeas corpus is a

cornerstone of our Constitution (its suspension is allowed only in cases of

invasion or insurrection - of which we have neither) and is an important

recourse for those who have been wrongly imprisoned. Habeas allows, for

instance, the wrongly imprisoned immigrant to argue that he is not the person

the authorities are seeking, but that he happens to have a similar or same name

as that person.

 

A related concern is the legislation's vague definition of " enemy

combatant. " An " unlawful enemy combatant " (as opposed to a " lawful " one - a

member of a foreign army fighting the US) is defined as " a person who has

engaged in hostilities or who has purposefully and materially supported

hostilities against the United States. " The law gives the president discretion

to determine who fits this description. There is nothing to stop him, for

instance, from applying the label " enemy combatant " to a Muslim resident alien

who donates money to a charity being investigated by the FBI - then imprisoning

that person and keeping him in a legal limbo that may last a lifetime. There is

also nothing in the law that explicitly exempts US citizens - for example, those

who protest the president's war policy - from being called " enemy combatants. "

 

Another concern with the MCA is that it does an end-run around Hamdan v.

Rumsfeld (2006), in which the Supreme Court ruled against the military tribunals

crafted by the Bush administration to try Guantanamo detainees. In Hamdan, the

court also determined that all detainees deserve Geneva Convention protections.

The MCA attempts to nullify the court's rulings by having Congress, rather than

the president, authorize military tribunals and stating that protections

guaranteed by international law do not apply to enemy combatants.

 

Legal experts have called the military tribunals a charade: the tribunals do

not allow detainees to challenge the facts of their detention or hear and answer

the charges against them. Instead, detainees are typically told to respond to

vague charges of " associating " with terrorists. The MCA will have the effect of

delaying hearings for Guantanamo detainees and increasing the likelihood that

the detainees will spend life in prison or be given death sentences - despite

many high-publicized studies concluding that vast majority of those rounded up

and taken to Guantanamo are not al-Qaeda fighters.

 

The legislation gives the president unprecedented power to determine use of

coercive techniques short of torture in interrogations and gives all US

officials retroactive blanket immunity from charges of torture that may be

brought against them. We can expect the continued use of water-boarding (near

drowning), stress positions, religious and sexual humiliation, exposure to

extreme cold and sleep deprivation among other techniques the administration has

repeatedly denied constitute torture.

 

" It removes as many checks and balances as possible, " stated Senator Patrick

Leahy about this legislation in a recent television interview, " so that any

president can basically set the law, determine what laws they'll follow and what

laws they'll break and not have anybody be able to question them on it. "

 

It is widely anticipated that the MCA will eventually be struck down as

unconstitutional. That process, however, will take time. In the meantime, it is

important that citizens act as a check and balance to the executive branch. It

is up to us to protest abuses of due process at Guantanamo and any liberal

sprinkling of the label " enemy combatant. "

 

We must take a stand against torture. Amnesty International has launched

" America I Believe In " - a campaign " to restore our traditional American values

of justice, rule of law and human dignity. " Learn about that campaign at

amnestyusa.org and visit michiganpeaceworks.org for additional suggestions. It's

not too late to take our country back.

 

 

 

 

--

 

Go to Original

 

Many Follow US Example on Detainees

By Nick Wadhams

The Associated Press

 

Monday 23 October 2006

 

United Nations - Several governments around the world have tried to rebut

criticism of how they handle detainees by claiming they are only following the

U.S. example in the war on terror, the U.N. anti-torture chief said Monday.

 

Manfred Nowak, the U.N. special investigator on torture, said that when he

criticizes governments for their questionable treatment of detainees, they

respond by telling him that if the United States does something, it must be all

right. He would not name any countries except for Jordan.

 

" The United States has been the pioneer, if you wish, of human rights and is

a country that has a high reputation in the world, " Nowak told a news

conference. " Today, many other governments are kind of saying, 'But why are you

criticizing us, we are not doing something different than what the United States

is doing?' "

 

Nowak said that because of its prominence, the United States has a greater

responsibility to uphold international standards for its prisoners so other

nations do not use it as an excuse to justify their own behavior.

 

The remarks were the latest in a tense back-and-forth between Nowak and the

United States. He has been an outspoken critic of U.S. detainee policy,

chastising the United States for maintaining secret prisons. He has also been

skeptical about new legislation that would protect detainees from blatant abuse

- such as rape and torture - but does not require automatic legal counsel and

specifically bars detainees from protesting their detentions in federal courts.

 

State Department spokesman Kurtis Cooper said Monday night that he had not

seen Nowak's comments and had no response.

 

Nowak reiterated his opposition to that prohibition, saying " we should have

enough trust in them that they should be the ones to deal with " the detainees.

 

He has said the United States must close its Guantanamo Bay detention

facility and refused an invitation to visit because he would not be allowed to

interview detainees. Nowak has reported that reliable accounts indicate

suspected terror detainees being held there have been tortured.

 

Nonetheless, Nowak said the United States had improved its handling of

detainees, particularly in Iraq after the Abu Ghraib scandal. The big problem in

Iraq now were allegations of detainee torture by militias and the Interior

Ministry.

 

He said detainees were now afraid of being transferred from the control of

multinational forces to Iraqi prisons.

 

" They would prefer if they are in detention now to be in the international

detention facilities rather than the Iraqi detention facilities, " Nowak said.

 

Nowak also recently canceled a trip to Russia after he was told Russian law

prohibited him from visiting detainees. He had planned to go there from Oct.

9-20. He said countries need to make sure his terms of reference - which give

him the right to meet with detainees - are obeyed.

 

" I would appeal to governments before inviting to really make sure that

their domestic laws and policies fully comply with my terms of reference, " he

said. " Otherwise, it doesn't make much sense to invite me. "

 

 

As nightfall does not come at once, neither does oppression. In both instances,

there's a twilight where everything remains seemingly unchanged, and it is in

such twilight that we must be aware of change in the air, however slight, lest

we become unwitting victims of the darkness.

William O. Douglas