Between the radioactive elucubrations of the Dear Leader, the accumulation of tortured and executed bodies in Iraq, the tawdry revelations of the Foley affair, and the growing murmur of a supposed Democratic sweep in the midterm election (I’ll believe that one when I see it), there has been precious little front-page consideration of the signing, earlier this week, of the Military Commissions Act.
As you may have heard, the act drastically changes the legal landscape for foreigners in the United States, whether here legally or illegally. It allows the government to deny a foreign suspect the right to challenge his or her imprisonment (habeas corpus), to employ evidence obtained by a wide and ambiguous range of coercive methods, and to use classified evidence whilst withholding it from the defense. Small things like that.
I will leave it to the lawyers here to amplify or amend this summary. Perhaps one reason why there hasn’t been much discussion is that the Supreme Court will ultimately determine whether, and in what form, this law stands. It’s quite possible that the Hamdan case, in which desi lawyer Neal Katyal plays a prominent role, will become the test case. At any rate, some in the media are looking ahead to this next phase, and already centering speculation on Justice Anthony Kennedy, the current swing Supreme.
I did, however, come across one very interesting piece of commentary that I wanted to share. In an Op-Ed in the Boston Globe, Harvard Law professor Martha Minow and a former legal adviser to the Israeli military, Gabrielle Blum, compare the new legislation with Israel’s approach to the same problem. They lead with their finding:
BEFORE ENACTING the “Detainee Bill” (otherwise known as the Military Commissions Act) two weeks ago, Congress should have spent more time learning from the Israeli experience. Compared with Israel’s security measures during a long and difficult experience with terrorism, the US Congress has gone too far in its willingness to compromise human rights and civil liberties. Security considerations, as legitimate and forceful as they are, do not justify such excessive measures, as the Israeli practice demonstrates.
Israel’s Unlawful Combatants Act, enacted in 2002, among other things provides for an immediate military hearing of the detainee upon detention, and a judicial hearing within two weeks and again every six months; a range of requirements for detention conditions and privileges; and the detainee’s right to meet with the Red Cross. The current U.S. legislation provides none of these safeguards. In addition, also unlike Israel, the U.S. law grants immunity to U.S. officials from prosecution except in the most extreme cases.
Minow and Blum conclude:
… the US Military Commissions Act sends to other countries facing terrorism the message that effective judicial review is null and void once the security alarm is sounded. It demonstrates a level of panic and irresponsible abandonment of principles that other nations, facing similar dangers, have avoided.
As bad as this may be for America, it is potentially far worse for countries that look to the United States for leadership. Now, the US example will encourage other nations to throw away rights just when they are sorely tested.
Kinda bleak after their access to Taliban Singles Online was blocked.
DTK (#49): The safe word is Mujahideen.
Abhi (#48): Particularly disturbing was this excerpt:
One officer ordered a soldier to buy some perfume at the PX and rub it on the arm of a detainee “to distract” him. The report said that in response, the prisoner tried to bite her, “fell out of his chair and chipped his tooth.”
And here I thought the Pentagon was after the tooth, the whole tooth. Maybe THEY CAN’T HANDLE THE TOOTH!!!
Martha Minow actually sounds like an underdog. And Arlen Specter, when you think about it, is a pretty draconian sounding name.
Made my day. Thanks Mr.K. Sorry I had nothing of value to add to the discussion, but that was awesome.
Kritic, dude; Give it a rest. This:
is getting kinda old. Whether or not the facts about Jenin were misreported, you persist in ignoring the T-Rex in the living room; i.e. the IDF, by precisely the standards developed by Western post-war democracies, smells very bad. Furthermore, I think you’ve deliberately chosen to ignore the very clear import of the locution “even by Israeli standards”.
As for:
I feel rather pessimistic that (assuming a Democratic majority happens) the Dems will choose to rock the boat with the ’08 elections looming. Foreigners do not vote, and most “law-abiding independents” whom the Dems might hope to sway in ’08 may not care for such subtleties as habeas corpus. The Dems have stopped being a party of principles ever since they started second-guessing what plays well in Middle America. Given the success of the GOP’s “evil”-foreigner scare tactics in Middle America, I fear that the Mil. Comm. Act will stand… Democratic majority or not. Or do you think this is being too cynical ?
the post war democracies set standards, thru the Geneva conventions (among other treaties), of dealing with prisoners from state run totalitarians like Nazis and communists. But non-state evil-doers present a special challenge that only forward thinking statesmen like g w bush seem to be willing to address.
Personally, i think there should be more checks and balances in the Military Commissions Act but i’m shocked by how nobody on this thread even addresses the special circumstances related to non state actors committing terrorists acts that may one day include biological or nuclear weapons.
until now, only Israel has set policy w/ this possibility hanging over their head, which explains their draconianism. But we are all Jews now, so we better take some lessons from them.
I agree, as do all commenters, that this is a serious issue. However, it is not the most pressing ethical issue facing the US defence system. That is the question of losing our philosophical bearings. I know it sounds a bit airy, but stay with me for a moment here. What, exactly, would be the point of become terrorists in the fight against terrorism? Is tit-for-tat genocide the answer to genocide? Is retaliatory rape the right response to rape? How can assaults on liberty free us from assaults on liberty?
“They say that what you mock
Will surely overtake you
And you become a monster
So the monster will not break you…”
Yes, Osama is a nut, and he and his minions must be dealt with with toughness, but once cruelty and persecution become part of our own make up, as it has of Israel’s, at that point, we’re just bailing water. That’s the problem with these legal machinations. They are leaving a big gap in the defences we as a nation have set up against cruelty and persecution. And the people who will suffer from this will be, if the history of the last five years is anything to go by, people who have little or nothing to do with the purported “war” in progress. People’s lives will be destroyed because they happen to have an expired visa or some such.
There’s a good reason the word “draconian” has a strong pejorative sense to it. It’s because being cruel is not something any person should aspire to or condone. Tough, sometimes. Cruel, never. Are you willing to say, “cruel, never”? If you’re not, the monster broke you already, and there’s nothing left to fear. There’s no sadder example of that than Israel, subject to one of history’s worst campaigns of persecution, barely surviving the century, only to draw the world’s contempt for repeated crimes against humanity.
Manju:
Methinks you shock too easily. The reason I — and I’m speaking only for myself here — do not address the issue of non-state actors committing terrorist acts is that I do not share your geopolitical innocence. There is an outside chance that non-state actors can be defeated through draconian measures on the home front, but this seems rather naive. Your faith that a western democracy will not be swayed by the temptation to wantonly wield a powerful weapon like the Military Commissions Act against foreigners is an optimism that I don’t share. Whether in erstwhile Belgian Congo, or throughout the Afghanistan conflict, or in the “cleansing” of the Sabra and Schatila camps: western democracies have utilised non-state purveyors of terror — whom you fear so much — to pursue their ends: i) In such a way as to ensure that their human-rights credentials remain unstained; and ii) With a fine disregard for the “collateral damage” that these non-state actors have caused. Given this type of record of quasi-legal action against innocent foreigners, I for one am not at all sanguine that “forward-thinking statesmen” of the aforesaid heritage can be trusted with legally-sanctioned tools of oppression.
Look Manju, at a certain level, I share your sense of violation that 9/11 represents. It may feel like the end of innocence, but I have mixed feelings about such innocence. The innocent, in the sphere of world politics, has been likened to “…a dumb leper who has lost his bell, wandering the world meaning no harm.” (Graham Greene) Giving him the Greenian benefit of doubt : “forward thinking statesmen” like GWB might mean no harm. But I am very much going to keep expressing my concerns about the blowback that is inevitable with neocon mean-no-harm initiatives. So… you now know why I do not (to use your words) even addresses… non state actors committing terrorist acts.
Maybe, maybe not. Possibly people (like me) are just quietly lurking while the topic is hammered out between commenters who (hopefully) have a sufficient degree of knowledge in the area to be able to discuss it intelligently. It is quite a “specialised subject”, after all, albeit one which has significant ramifications.
Good discussion so far, everyone. Carry on.
(PS: Offtopic — GujuDude, thanks for the link on the other thread about Robert Greene’s blog. I’ve flicked through his book The 33 Strategies of War — haven’t bought it yet although it’s on my shopping list — but I had no idea he had his own website. Thanks again).
GB, Please don’t tell me that the simple right to appear before a judge to challenge one’s detention is a subtlety for most American voters…
Kobayashi-San,
I actually had some similar thoughts about this on another related thread here a few weeks ago and am therefore going to re-post my comments verbatim:
“I guess the people concerned — ordinary civilians, politicians, military etc — need to decide whether they hold this principle as so inalienable from an ethical viewpoint that they are prepared to risk injury/death/defeat rather than compromising the principle. Difficult choice: Idealism vs Pragmatism.
Too much idealism : Naivete and self-destructiveness. Too much pragmatism : Ruthlessness and cynicism.”
Okay, really back to quietly lurking now…..
Jai Singh:
I think the objective of the post was to answer the very point you make: that there is not an either-or dichotomy between freedom and security, and that Israel, a country that has had it far tougher for decades now, did not need the extreme powers the US has granted itself.
DQ – I don’t know if it is a subtlety, but it is definitely not something that significantly informs their thinking. Something as visually striking as the abuse in Abu Ghraib did not have much of an effect on the public, and it was a complete non-issue in the presidential debates in 2004. The issue of rights affecting non-citizens is much more amorphous, and even people without any ax to grind against damn for’ners might not feel strongly enough about it as it does not affect them. Assuming, of course, that the average American even knows the details, which I seriously doubt. Not to mention the gun-toting job-losing wall-building brown haters (yes, I realize that the border control rage is directed against Mexicans, but it does tap into an undertone of racism and xenophobia).
DQ:
Sorry for being cryptic. What I meant to convey is that lots of people are unclear whether habeas corpus extends to non-citizens. Admittedly, when I say “lots”, there is an extrapolation involved. I found that many 1st-year, Ph.D.-level U.S. students are confused over civil right versus voting rights. This confusion may well extend to the populace at large. This may be why the issue of how much of a loss it would be to the national ethos to selectively suspend habeas corpus — especially if said suspension will most likely affect only foreigners — appears to be a murky area (maybe I shouldn’t have said “subtlety”) for the uncommitted, generally-politically-disengaged, superficially concerned-about-national-security type of swing voter.
Rahul and GB, thanks for the clarifications.
From the commentary I’ve read, though, I derived the impression that the suspension of habeas corpus would apply to citizens as well if the President or Sec of Defense decided to name them enemy combatants. Perhaps this is not being made sufficiently clear through the media? One commentator said that it was the first time the American system, “designed to be run by devils”, allowed for no checks or balances against a bad president. In 1930s Germany, the granting by Hindenburg of authoritarian powers to Hitler was a shocker for the left – in a country like the States, which embodies the democratic tradition, it seems incredible that people don’t understand that the ‘bell is tolling’ for them…
DQ, I do not think that this is the case, but more legally savvy folks should comment. Habeas corpus is being denied “only” to aliens named as enemy combatants, as I understand it. Not that it excuses things.
Even without this latest excess, however, there have been tons of wake up calls for Americans, but they’ve all been systematically responded to with gigantic snores. If people haven’t been bothered yet by: * The aggressive use of surveillance records (including access to library records) under the Patriot Act without any effective supervision by Congress, * The Hooveresque monitoring (yes, that vast sucking sound you hear is from the information vacuum) of peaceful protesters by the FBI, * The use of warrantless wiretapping, * The recording of large numbers of calls to infer patterns (which will possibly provide some work for the good hardworking people implementing the first 3 ideas) why should one more intrusion tip the balance?
And as long as voters keep electing pusillanimous politicos like Arlen Specter, dissembling demagogues like Orrin Hatch, and hypocritical humbugs like John McCain (yes, I am an alliteration aficionado! A veritable verbal vidwan!), I don’t see how things can get any better.
The only amendment that matters, after all, is the second. Yeehaw!
“When they came for me, there was nobody to complain, because they didn’t know why I had disappeared, or where I was.”
Just to add to the last couple comments, the Constitution specifically denies the federal government the power to suspend habeas corpus. The issue is whether the habeas corpus provisions still apply to unlawful enemy combatants. There are arguments on both ways and it’s an issue that will likely reach the Supreme Court. As I mentioned in an earlier comment, CSPAN aired an excellent panel discussion on the issue. It was interesting to hear the opinions of military lawyers. It seems as they would much rather have these hearings take place in Article III courts because there is simply no precedent to provide guidance to the officers drafting the rules and procedures for the military commissions.
this is what the democrats (the donkey) will do to the republicans (the fat dude)in the midterm elections
http://video.google.com/videoplay?docid=-3130011932080891613&hl=en
Rahul and Sriram,
I found a video clip of an interview by Ken Olbermann of a law prof at George Washington U. You can view it at: http://www.msnbc.msn.com/id/15318240 (sorry, haven’t figured out how to link to videos here). Here’s an excerpt:
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, GEORGE WASHINGTON UNIVERSITY CONSTITUTIONAL LAW PROFESSOR: 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 heÂ’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 itÂ’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 didnÂ’t rely on their good motivations.
Well said, Kobayashi.
Great post Siddhartha!
This ridiculous piece of legislation (suspension of habeus corpus for immigrants) will not sustain an almost certain 14th amendment challenge and should result in a swift striking down of the law.
Also the atrocities committed by the IDF are evidenced by independent facts and the reaction/hypocracy of the Ummah on worse atrocities by the Russian army in Chechnya or Janjaweed in Somalia do not negate that independent reality.
Siddhartha — Inspired by Kobayashi’s comment, I suggest you change the headline on this post to “Bush signs law banning arranged-mixed-marriages while in detention at Guantamamo.”
DQ, (#68)
That is definitely a valid interpretation of the law and one that the administration will likely push. There are two reasons I will wait before going into a panic. First, we need to wait for the results of legal challenges to the law. There is a strong argument that the law violates the Habeas clause of the constitution. If the courts accept the argument, which is by no means a certainty but likely IMO, then this provision of the law will be deemed unconstitutional. Second, the tribunals are administered by the military. I’ve seen more than one military lawyer say that military commissions would not part too far from Article III courts simply because the military wants other countries to honor the Geneva Conventions when U.S. soldiers are captured. I also stated earlier that there are other reasons why the military is wary of the law’s implementation. So, while there is definitely a reason to be concerned, I still have some modicum of faith that the courts and the military JAG offices are more competent and reasonable than the Justice Department or White House.