- "With that said, and I have quoted several other
experts last week, it appears that the language of the MCA does NOT in
fact authorize any portion of the bill to apply to citizens. It specifically
limits the bill's application to "aliens," defined as non-citizens.
I'm indebted to one of my lawyer subscribers for having the tenacity to
insist I reread the bill again. I did. I found that earlier versions of
the bill (which the current experts may still be relying upon) do not limit
the bill to aliens. But the one signed by the president does."
- CLARIFICATION ON THE MILITARY COMMISSIONS ACT
- Despite the presumed urgency of passing this bill, President
Bush finally signed the MCA after delaying more than 2 weeks. Many have
presumed he was delaying to forestall the legal challenges waiting in the
wings. Whatever the reason, it's now law and none of the non-citizens (between
12 and 20 million strong) in America have the core civil protection of
habeas corpus if suspected of any form of support for terror, very broadly
defined. Ironically, the courts have mandated, with no constitutional basis,
that illegals have the "rights" to public welfare, education,
and hospital care, but apparently not freedom from unlimited detention.
- In past briefs on this issue, I have relied on numerous
judges and legal scholars who have claimed that certain portions of the
MCA strip even citizens of habeas corpus protections. Specifically, MCA
establishes an overly broad definition of "unlawful enemy combatant"
to include anyone who gives material or verbal support to enemies of the
state. Here is a recent example. Keith Olbermann, anchor, MSNBC's "Countdown"
interviewed Professor Jonathan Turley, who teaches constitutional law at
George Washington University.
- OLBERMANN: "I want to start by asking you about
a specific part of this act that lists one of the definitions of an unlawful
enemy combatant as, quote, 'a person who, before, on, or after the date
of the enactment of the Military Commissions Act of 2006, 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
or the secretary of defense.'
- "Does that not basically mean that if Mr. Bush or
Mr. Rumsfeld say so, anybody in this country, citizen or not, innocent
or not, can end up being an unlawful enemy combatant?"
- JONATHAN TURLEY: "It certainly does. In fact, later
on, it says that if you even give material support to an organization that
the president deems connected to one of these groups, you too can be an
enemy combatant. And the fact that he appoints this tribunal is meaningless.
You know, standing behind him at the signing ceremony was his attorney
general, who signed a memo that said that you could torture people, that
you could do harm to them to the point of organ failure or death. So if
he appoints someone like that to be attorney general, you can imagine who
he's going be putting on this board."
- OLBERMANN: "Does this mean that under this law,
ultimately the only thing keeping you, I, or the viewer out of Gitmo is
the sanity and honesty of the president of the United States?"
- TURLEY: "It does. And it's a huge sea change for
our democracy. The framers created a system where we did not have to rely
on the good graces or good mood of the president. In fact, Madison said
that he created a system essentially to be run by devils, where they could
not do harm, because we didn't rely on their good motivations. Now we must.
And people have no idea how significant this is. What, really, a time of
shame this is for the American system. What the Congress did and what the
president signed today essentially revokes over 200 years of American principles
- "It couldn't be more significant. And the strange
thing is, we've become sort of constitutional couch potatoes. I mean, the
Congress just gave the president despotic powers, and you could hear the
yawn across the country as people turned to, you know, 'Dancing with the
Stars.'... I think people are fooling themselves if they believe that the
courts will once again stop this president from taking over - taking almost
absolute power. It basically comes down to a single vote on the Supreme
Court, Justice Kennedy. And he indicated that if Congress gave the president
these types of powers, that he might go along. And so we may have, in this
country, some type of uber-president, some absolute ruler, and it'll be
up to him who gets put away as an enemy combatant, held without trial."
- *** With that said, and I have quoted several other experts
last week, it appears that the language of the MCA does NOT in fact authorize
any portion of the bill to apply to citizens. It specifically limits the
bill's application to "aliens," defined as non-citizens. I'm
indebted to one of my lawyer subscribers for having the tenacity to insist
I reread the bill again. I did. I found that earlier versions of the bill
(which the current experts may still be relying upon) do not limit the
bill to aliens. But the one signed by the president does. ***
- Even with that correction, I must warn you that the government
is still treating some citizens as if they have no habeas corpus rights.
We need look only into the case of Jose Padilla, the presumed planner of
a dirty bomb attack. NPR journalist Ray Suarez (News Hour with Jim Lehrer)
explains the conundrum:
- "President Bush labeled Padilla an 'enemy combatant,'
allowing the U.S. military to detain him indefinitely with limited access
to attorneys. Padilla then sat in a Navy brig in South Carolina for more
than three years without ever being formally charged with a crime, until
yesterday, when Attorney General Alberto Gonzales announced the U.S. Government
was indicting Padilla for supporting terror campaigns in Afghanistan and
elsewhere between 1993 and 2001. Gonzales said, 'The indictment alleges
that Padilla traveled overseas to train as a terrorist with the intention
of fighting in violent jihad.' Gonzales would not explain to reporters
why Padilla's alleged plans to attack the U.S. were not included in the
indictment, or whether he's still considered an enemy combatant."
- The government only brought charges against Padilla,
trumped up and generalized as they were, in order to derail a habeas corpus
demand by Padilla's volunteer legal team. The government didn't want the
nation to be aware that Padilla had been denied both the habeas corpus
and "speedy trial" provisions of the US Constitution.
- Padilla also claims he was tortured and forcibly medicated
with a hallucinatory drug (probably some form of 'truth serum' which doesn't
really work). His lawyer told the court, "He was threatened with being
cut with a knife and having alcohol poured on the wounds. He was also threatened
with imminent execution."
- So, while I am standing by the clarification made that
the specific language of the MCA does not authorize the denial of habeas
corpus for citizens, it is happening anyway and will happen again. We simply
cannot trust the president or the courts to follow the Constitution.
- Moreover, the President does not consider unfavorable
portions of the law apply to him. As the Air Force Times reports, Bush
says he may ignore the new war-funding law Congress said it wants next
year's defense budget to include. "In a 'signing statement' released
when he signed the 2007 Defense Authorization Act on Oct. 17, the president
listed two dozen provisions in the act that he indicated he may or may
not abide by." Those provisions restrict his ability to hide funding
for wars. Congress wants all the costs to be up front and verified, and
the president obviously does not.
- Copyright Joel Skousen. Partial quotations with attribution
permitted. Cite source as Joel Skousen's World Affairs Brief (http://www.worldaffairsbrief.com)