- The Washington Times - Monday, November 13, 2006

The earmark of former House of Representatives Speaker Newt Gingrich, Georgia Republican, was his Contract with America.

The corresponding signature for Nancy Pelosi, California Democrat, scheduled House speaker for the 110th Congress, should be an agenda that restores freedom, the rule of law, and checks and balances to America. The Constitution has been put out of joint by President Bush, and history has saddled a Democratic-controlled Congress with an obligation to set it right.

Mrs. Pelosi should spearhead an effort to repeal the Military Commissions Act of 2006 (MCA). It suspends the writ of habeas corpus for alleged unlawful enemy combatants and aliens convicted by military commissions of war crimes based on secret evidence, coerced testimony and hearsay. (The writ creates no substantive rights for detainees, but simply requires the executive to establish before an impartial and independent judge the factual and legal justifications for detentions that could continue for life).

The MCA also empowers the president to detain American citizens indefinitely as unlawful enemy combatants based on evidence obtained by torture; and, to define the term to reach any detractor of Mr. Bush’s counterterrorism tactics or strategy. The president is further authorized by the MCA to issue virtually conclusive interpretations of cruel, inhuman or degrading treatment of detainees under the Geneva Conventions — for example, whether water boarding is permitted.

The Constitution celebrates freedom and due process as the norm. It requires the government to shoulder a heavy (but not insurmountable) burden to justify departures. The MCA was enacted without any demonstration that applying customary legal rules to suspected international terrorists to safeguard against executive error or injustices epitomized by tortured Syrian Canadian Maher Arar would threaten national security or the safety of America. Civilian courts or military tribunals operating under the Uniform Code of Military Justice are competent to try war crimes without compromising intelligence sources or methods under the Classified Information Procedures Act.

The perpetrators of the 1993 World Trade Center bombing were successfully prosecuted in a civilian court. Ditto for Zacarias Moussaoui, the suspected 20th hijacker of the attacks of September 11, 2001. Jose Padilla is under prosecution in a civilian court for allegedly providing material assistance to al Qaeda. And Osama bin Laden himself is under a federal grand jury indictment for conspiring to sabotage national defense establishments.

As to alleged unlawful enemy combatants, the Bush administration has failed to identify even one plausible hypothetical case where habeas corpus would risk the release of a genuine terrorist.

No civilized nation has an interest in punishing or detaining the innocent. The Constitution demands and a decent respect for freedom requires adherence to procedural protections calculated to reduce the risk of executive missteps but which also avoid freeing the guilty. The MCA defiles that defining emblem of America.

Mrs. Pelosi should also start using the power of the purse to terminate the National Security Agency’s warrantless spying program that targets American citizens on American soil for electronic surveillance or physical searches in violation of the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended six times since September 11 to accommodate the heightened danger and new communications technologies.

No funds of the United States should be made available for gathering foreign intelligence in contravention of FISA. At present, the NSA is intercepting the e-mails and international calls of American citizens on the president’s say-so alone. It has been doing so for more than five years. The number of Americans targeted, the criteria for selecting them and what the Bush administration does with the intercepted communications are unknown. Americans could have their employment, credit arrangements or social contacts disrupted by NSA leaking the intercepts or its suspicions about terrorist sympathies.

President Bush has not articulated even one terrorist incident averted because of the NSA’s five years of illegal spying. Nor has he been able to explain why FISA, which expressly contemplates its application during wartime, is unworkable in post-September 11 circumstances. Indeed, on July 31, 2002, Mr. Bush’s Justice Department informed the Senate Intelligence Committee that FISA, as adjusted by the Patriot Act, was impeccable.

Mrs. Pelosi should also urge revision of the state secrets privilege. It denies justice to victims of constitutional violations if proof of their claims would require disclosure of classified information, for example, a conspiracy to torture hatched between United States and foreign intelligence officials. The privilege also weakens the deterrent to official wrongdoing and the executive branch’s political accountability. A statute should be enacted that requires the entry of judgment against the United States if the state secrets privilege is invoked to prevent a plaintiff from proving unconstitutional misconduct.

Mrs. Pelosi’s freedom, rule of law, and checks and balances agenda also should include statutes empowering Congress to sue the president over presidential signing statements or withholding information based on executive privilege; a media exception to criminal prosecutions for disclosing national defense information under the Espionage Act of 1917; and, a prohibition on U.S. government kidnappings, detentions or interrogations abroad with the intent to deny the detainee indefinitely any political or judicial recourse for unconstitutional or other illegal action.

In sum, Mrs. Pelosi’s chance for a shining place in freedom’s history is at hand.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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