OPINION RELEASE: Sayonara to Checks and Balances?
- Rick Stanley
We the People Scoop 10/05/06
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OPINION RELEASE: Sayonara to Checks and Balances?
----- Original Message -----
From: "W. Duke" <dukesgloballinks@...>
Subject: Sayonara to Checks and Balances?
> Sayonara to Checks and Balances?
> By Aziz Huq, HuffingtonPost.com
> Posted on September 30, 2006,
> "Checks and balances" has a nice ring. But it's a currency that doesn't go a
long way in Washington today.
> The Military Commissions Act of 2006, of MCA, passed by the House and Senate
is a wholesale assault on the idea of a limited government under law.
> It will be taken by the Bush Administration as a blank check to torture, to
detain indefinitely without just cause, and to trample the values that win
America respect in the world. From tomorrow, counter-terrorism is the "land of
do as you please" for the President and the wise men of the Defense
Department -- those savants who brought you Iraq, the gift that keeps on giving
(at least if you're a jihadist).
> The MCA comprehensively assaults two ideas: The idea of checking executive
power by laws. And the idea of a separate branch of government ensuring those
limits are respected. These are the basic tools of accountability. The MCA
frontally attacks both of these -- although only time will tell whether it
> How does the Military Commissions Act assail checks and balances? Consider the
key issues of detention and torture.
> The MCA says nothing explicit about the detention power. Indeed, I would argue
that nothing in the legislation ought to be read to imply
> Here's how the Addington play for detention power will work. The opening
definition of the Act describes elaborately what an "unlawful enemy combatant"
is. Why? The term is a neologism. The laws of war do not use or define this
term. Indeed, it is a mutation of a phrase used in a subordinate clause of a
1942 Supreme Court opinion. Nothing else in the Act directly turns on this
definition--although only an "alien unlawful enemy combatant" can be subject to
trial by military commission. So why bother with the elaborate definition? And
why extend the definition to U.S. citizens as well as non-citizens?
> Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld
decision, stated that an "enemy combatant" captured in hostilities could be held
for the duration of those hostilities. The Court made very clear it was talking
about only the limited context of the ground war in Afghanistan, not some
amorphous and unending "war on terror." But Addington et al. will, however, take
Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a
detention power that applies anywhere and anytime.
> There are two ways in which you -- citizen or non-citizen, resident of Topeka
or Timbuktu -- can become an "unlawful enemy combatant."
> The first way is if you engage "n hostilities" or "purposefully and materially
support" hostilities. This sounds reasonable enough until you realize that
no-one has the slightest clue what it means to "purposefully and materially
support" hostilities. Do you need to intend to aid the hostilities? Or is it
enough to intend to give the support? Would purposely giving to a charity that
then gave money to Hamas count, even if you knew nothing about the Hamas? What
about writing an editorial that gave "aid and comfort" to the enemy -- say, by
criticizing the Administration's Iraq policy?
> The second way is -- if it's even possible -- more dangerous: You are
designated an enemy combatant by a Combatant Status Review Tribunal -- the
Potemkin proceedings jerry-rigged at Guant�namo -- or you are designated by
"another competent tribunal" created by the Defense Secretary.
> It's the latter that catches in the throat, because the MCA does not define
what Rumsfeld's "competent tribunal" must look like. Rummy himself with the
always-fair-and-impartial Addington? Five Syrian torturers (like the ones to
whom the U.S. sent the hapless Canadian Maher Arar)? A bunch of guys who flip
coins for your liberty? Sure, why not? The MCA doesn't stop the executive from
using any of these, provided Rumsfeld gave them power and hence made them
> At least for non-citizens, moreover, that would be that: For the first time in
U.S. history, an Act of Congress singles out a group of
persons--non-citizens--and deprives them of any right to challenge their
detention wherever they are picked up. No non-citizen would, the MCA seems to
say, be able to challenge this detention. And while citizens are certainly
entitled to a hearing, the Government will fight tooth and nail to make sure
this hearing doesn't allow any effective inquiry into the facts on which a
detention is based. So no judicial review -- and no accountability.
> The same dynamic is at play in the anti-torture rules. The MCA alters a
criminal statute called the War Crimes Act, which imposed criminal sanctions for
certain violations of the laws of war.
> Until recently, the United States could proudly point to a long history of
supporting a universal ban on torture, and to a strong record in ensuring that
those who in fact tortured did not escape accountability. No longer. Now a gamut
of horrendous kinds of treatment will be non-criminal -- and, the Bush
Administration will argue, within the discretion of the President.
> Start with the substantive anti-torture rules themselves (which cover both
torture and the lesser "cruel and inhuman" treatment). The MCA contains an
incredibly complex and convoluted set of definitions. Despite all the cant about
clarity, the rules no longer in plain English -- as they were in Common Article
3 of the Geneva Conventions -- and they are so full of holes they might have
been tortured themselves.
> Here are three examples of the duplicitous ambiguity of the MCA when it comes
to torture and abuse.
> First, "cruel and inhuman" treatment is defined as acts that cause "severe or
serious" pain. We know "severe" is worse than "serious" because "severe" is used
to define torture (yes, we'll get there in a moment). But then "serious pain" is
defined as "bodily injury" that causes "extreme physical pain." So "serious"
pain is only "extreme" pain? Isn't extreme worse than serious? It would seem
so--but the MCA is deliberately confusing and circular.
> And why the reference to bodily injury? Does that mean that hypothermia and
long-time standing and those other wretched "enhanced" techniques more fitting
for Stalin's gulags than American facilities are not criminal? Well, yes, I
reckon it does.
> Second, in another convoluted section, "serious mental pain" is defined in
terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a
detainee, or to rape his spouse and his children -- all long-recognized as forms
of torture -- that's not torture; it's not even the lesser "cruel and inhuman"
> Finally, the torture statute itself. Almost unnoticed, the Bush Administration
has gutted the no-torture rule. It has added the requirement that a person
"specifically" intend to cause the pain that amounts to torture. This technical
change--foreshadowed in the August 2002 OLC memo -- has tremendous implications.
It means that any government agent who says his goal was to get information, and
not to cause pain, hasn't tortured no matter how bad the things he does. If the
person water-boards or knee-caps a person, or buries them alive, if it's to get
information -- well, that's just dandy.
> Once again, it's not just the substantive rules that have been assailed: It's
also the mechanisms to ensure the rules are followed. Under the MCA, there is no
accountability for torture. The MCA cuts off courts' power to hear claims of
torture by aliens held as "unlawful enemy combatants." And it vests the
President with power to interpret the relevant laws of war. So if he says that
"cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the
> There are two reasons for hope. First, any reading of the Act that reaches an
untrammeled detention power may be unconstitutional. The Supreme Court in the
2004 case of Rasul v. Bush -- in what one day will be called "famous footnote
15" -- strongly hinted that even non-citizens captured overseas have Due Process
rights. Combined with another clause of the Constitution called the Suspension
Clause, this means the unchecked detention power and the jurisdiction-strip are
> Second, even if the War Crimes Act has been amended, the Due Process Clause
also ought still to protect detainees held overseas: Torture is un-American.
It's also unconstitutional--and that doesn't change depending on where it's
done. Moreover, the law of war, embodied in the Geneva Conventions, is clear:
There is no "specific intent" requirement for torture. Countries -- whether it's
the United States or North Korea -- cannot unilaterally define down the rules
> "Unchecked and unbalanced" government -- I argue at length in a forthcoming
book-- is antithetical to American government. The MCA is also anathema to our
best traditions. We must hope it is our traditions that win, and not the selfish
partisan posturing that animated this week's votes.
> Aziz Huq is co-writing a book on national security and the separation of
powers called Unchecked and Unbalanced, to be published by the New Press.
> � 2006 Independent Media Institute. All rights reserved.
> View this story online at: http://www.alternet.org/story/42345/
> "Republic" is the proper description of our government, not "democracy."
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> It's All Good! Or Is It?
> W. Duke
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