Tuesday, October 17, 2006

Liberty, No More...

This afternoon, the President signed the detainee bill, also known as the Military Commissions Act, into law. This is the law creating a considerable amount of controversy because of the damage it does to American Democracy and liberty. Slate has an interesting assessment of the situation that seems to be an accurate perception of how we got here but not truely why. The why and how of it, though, are very important, as is what and whether.

The why and how of the Military Comissions Act is simple. The President will say that the why is because the Supreme Court determined his original plan for military tribunals violated the Constitution, leaving him with no definite way to deal with the several thousand inhabitants of Guantanamo. In reality, the law forgives acts of torture that could be construed under Common Article III of the Geneva Convention as war crimes from federal prosecution. The President disclosed the existence of rendition prisons (the secret CIA prisons in Europe), and the use of questionable interrogation tactics. If these interrogation tactics amount to torture, then the President and any policy-making member of executive leadership who permitted such acts are guilty of war crimes and subject to felony prosecution under the War Crimes Act. For those keeping score, if the President has committed a felony, then he is subject to impeachment by Congress and removal from office. So, the why is to save the collective political carreers of those who permitted members of the military and C.I.A. to use torture techniques for interrogation.

The how of this law's creation is even simpler. The Republican President rallied the Republican members of Congress before a midterm election that threatens the continued maintinance of a Republican majority in Congress under the premise that constituents want a government that is hard on terrorism. Should the people want a government that protects them from acts of international agression? Yes. Should that law also violate and suspend basic rights in the process? Most reasonable citizens would say no.

The what really comes down to the effect of this law. The President thinks it sends a clear message that the U.S. is tough on terrorism. However, it also sends the message that the President is tough on liberty, restricting free speech and political discourse by possibly placing "political dissidents" in the category of unlawful enemy combatants. Moreover, when one is labeled an enemy combatant, the government can make them disapear into secret detention with no right of due process. So much for liberty and the guarantee process that would otherwise prevent such an injustice. Together, these provisions allow the government to detain a CITIZEN indefinitely without being subject to criminal prosecution by a court established under the Constitution. The law allows the government a right that was never envisioned by the founders, or any other reasonable constituent. Rather, it legitimates a witch hunt sanctioned by Congress, like McCarthyism on steroids.

The whether deals with the constitutionality of the law. The Navy lawyer who represented Hamdan and won at the Supreme Court already raises his doubts regarding whether the law will pass constitutional muster. I am inclined to agree with this analysis. First, Congress may only suspend habeas corpus when the U.S. is at war. There has been no formal declaration of war in the current conflict. The thought that the Authorization for Use of Miliatary Force would support suspending the great writ is perposterous because how tenuous the link is between authorizing military action and waging a war though they seem historically indistinguishable. Alternatively, the law gives the President the power to interpret international law and determine what forms of interrogation amount to torture. This is the most absurd and most pervasive provision of the law. Congress wants to reign in the President so he doesn't violate the Geneva Convention, so they turn around and give him the power to determine, for himself, whether what he is doing violates the law. It's just illogical. Furthermore, the Courts are the only arm of the government with the power to interpret the law. No matter how quixotic the President may seem to think this form of government organization is, his oath binds him to the obligation to uphold the Constitution, and limits his ability to interpret binding law domestic or otherwise. Simply put, Congress lacks the power to pass the law, and the President lacks the power to enforce it.

In the long run, this law presents a very real danger to liberty in America. Given what it takes away, there is no reason to support a Republican led Congress in November. To be clear, I am not supporting every Democrat because there are a host of sound third party alternatives, but I am certainly not supporting anyone who voted for passing this law.

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