Having achieved much attention for insisting that the president obey the Supreme Court and provide detainees with the protections of the Geneva Conventions, the three rebel Republican senators, John McCain, John Warner and Lindsey Graham, nonetheless have voted in the 65-to-34 majority for the Military Commissions Act of 2006. Also approved by the House, this bill has President Bush’s approval.
But why do these would-be dissenters support it? Although these warriors for principle say they have now achieved their goal (“America can be proud,” adds Graham) this unprecedented and far-reaching statute makes it impossible for our detainees anywhere in the world to protest in our courts that their conditions of confinement violate the humane standards of the Geneva Conventions.
The Military Commissions Act closes our federal courts to any habeas corpus petitions on those conditions of confinement. This is despite the Supreme Court’s instructions this June to the president and Congress that the military commissions dealing with these prisoners provide them with “all the judicial guarantees recognized as indispensable by civilized persons.” Habeas corpus, eminently civilized, requires that the government demonstrate it is holding detainees lawfully.
But this radical new law goes much further than revoking habeas in showing the world — most importantly, our allies — the fragility of our vaunted rule of law, the bedrock of our constitutional republic.
This legislation not only strips the habeas rights of any alien designated as an unlawful enemy combatant, including permanent alien residents of the United States, but it also greatly and loosely expands the very definition of “enemy combatant.” Current case law defines an enemy combatant as someone engaged in armed conflict with this country, but now it also includes anyone who “purposely and materially” supports hostilities against the United States. Such alleged enemies can be picked up by the Defense Department and held without charges indefinitely — and without recourse to our courts.
Ari Shapiro, National Public Radio’s persistently astute and reliable reporter on our justice system, noted on Sept. 28, quoting concerned immigration organizations: “Imagine you’re somebody who’s been living in the United States for 30 years, married to an American citizen. You give money to an Islamic charity and the United States determines that that charity supported terrorism. That’s material support (in this new law). You can then be declared an unlawful enemy combatant, taken to a secret prison and…potentially never be heard from again, these (immigration rights) groups say.”
Amongthose alarmed, as I am, by this further expansion of executive powers by the Bush administration, is Jumana Musa, an Amnesty International lawyer. She told the Boston Globe (Sept. 28): “What if they had this after Sept. 11 (2001) when they picked up all kinds of folks on immigration charges and material-witness charges and tried them in secret immigration proceedings? “Those people,” she continued, “were deported. Now…they could be detained indefinitely as enemy combatants.”
Also disturbed by this legislation, championed by the president, is Democratic Rep. Doris Matsui, who was born in an Arizona detention camp during the roundup of Japanese Americans during World War II — a shameful episode in American history when the president was Franklin Roosevelt, who had insisted that it was “fear itself” to which we should not yield in time of war.
Said Mrs. Matsui on National Public Radio (Sept. 27): “From my family’s perspective, I know something about what can happen to the rights of Americans when the executive branch overreaches in a time of war.” And this new, startling overreaching, in the Military Commissions Act of 2006, could also encompass American citizens transformed into enemy combatants because of “material support” of the enemy as unilaterally defined by the executive.
Arguing on the Senate floor against the revocation of habeas corpus, Democratic Sen. Byron Dorgan of North Dakota spoke of Mitsuye Endo, who, at 22, was herded into a Japanese internment camp. Born and raised in this country, “She didn’t speak Japanese, had never been to Japan and had a brother in the U.S. Army…on release, her plea to the courts (helped) lead to the unlocking of those camps and led to tens of thousands of Japanese-Americans being let out… ‘With one woman’s writ of habeas corpus’ (and other such habeas writs), an awful chapter in our country’s history soon came to an end.”
Mr. McCain, after his involvement in the “compromise” with the president that led to this dangerous law, including the revocation of habeas corpus, said: “We’re all winners. I’m very proud of what we’ve accomplished.” When I think of the losers ahead, one person I will not support for the presidency is John McCain, a man whose principles are as flexible as Mr. Bush’s pledge to protect our civil liberties.