We will not allow the enemy to win the war by changing our way of life or restricting our freedoms. —George W. Bush, September 12, 2001
What has changed in the past five years that justifies not merely suspending, but abolishing the writ of habeas corpus for a broad category of people who have not been found guilty or even charged with any crime? . . . [Are] our people so terrified that we must do what no bomb or attack could ever do by taking away the very freedoms that define America? . . . What has happened that the Senate is willing to turn America from a bastion of freedom into a cauldron of suspicion ruled by a government of unchecked power? —Democratic senator Patrick Leahy, of Vermont, on the floor of the Senate, September 28
If the courts are not open to decide constitutional issues, how is constitutionality going to be tested? —Republican senator Arlen Specter, The New York Times, September 25
Right after 9-11, then attorney general John Ashcroft was directing the swift preparation of the USA Patriot Act. He sent a draft to the aggressively conservative James Sensenbrenner, Republican chair of the House Judiciary Committee. The bill included the suspension of habeas corpus for terrorism supsects—the right to go to a federal court to determine whether the government is holding you lawfully.
Sensenbrenner angrily recoiled at the proposed disappearance of the Great Writ and forced Ashcroft to strike it from the Patriot Act. Five years later, Sensenbrenner helped shepherd through Congress the Military Commissions Act of 2006, which prevents detainees held by us anywhere in the world, not only at Guantánamo, from having lawyers file habeas petitions in our courts concerning their conditions of confinement.
In 1798, the writer of the Declaration of Independence, Thomas Jefferson—who insisted habeas corpus be embodied in the Constitution—said to generations to come: “The Habeas Corpus secures every man here, alien or citizen [freedom from arbitrary confinement].”
But now, the Republicans’ Military Commissions Act can not only remove this bedrock of our liberty from prisoners outside the country but can also strip habeas protections from legal immigrants here, as well as from American citizens.
This last-minute insertion into the bill was worked out in a closed-door conference at the White House between Republican congressional leaders and presidential advisers, including Dick Cheney and his chief of staff, David Addington.
For the first time, the definition of “unlawful enemy combatant” has been greatly expanded to include not only those engaged in actual combat against the United States but also anyone anywhere who has “purposely and materially supported hostilities against the United States.” Such support can encompass sending money or empowering our enemies in other indirect ways.
“Imagine,” said Senator Patrick Leahy on the Senate floor last last month, “you are a law-abiding, lawful permanent resident. . . . You do charitable fundraising for international relief agencies. . . . You do not discriminate on the grounds of religion. Then one day there is a knock on your door.
“The government thinks that the Muslim charity you sent money to may be funneling money to terrorists, and it thinks you may be involved. . . . You are brought in for questioning. . . . You ask for a lawyer. But no lawyer comes. . . . Then [you’re sent to] Guantánamo. And then nothing, for years, for decades, for the rest of your life.”
Adds a September 27 Washington Post editorial, “Rush to Error”: “[This legislation gives] extraordinary power to the Defense Department to arrest and hold foreigners and Americans without charge” as enemy combatants without access to our courts. (Emphasis added.)
Before the Military Commissions Act was passed by the Senate and the House last month, Democratic senator Byron Dorgan, on the Senate floor, was still hopefully explaining why this country is different from others. “It is in this country where you can’t be picked up off a street and held indefinitely, held without charges, held without a trial, held without a right to go to court,” he said. “It is this country in which that exists.” This was that country.
In June of this year, the Supreme Court essentially ordered Congress (in Hamdan v. Rumsfeld) to stop deferring to what the president had been doing by violating our laws and international treaties for the past five years in the war on terrorism. At last, Congress acted, giving George W. Bush a clear statutory basis to even further expand the range of what he fondly calls his “unitary executive” powers.
As I’ll show in a couple of weeks, there is much more in this Military Commissions Act that radically changes the foundation of our way of life—the Constitution.
One example of what’s ahead: Under what used to be a standard of our system of justice, the accused must be allowed to rebut the evidence against him or her. For years, however, the administration has been using, to much criticism, secret evidence against suspects designated as combatants.
The first draft of the Military Commissions Act—as National Public Radio’s Ari Shapiro reported on September 28—”said the defendant could examine and respond to evidence against him. . . .[But] the legislation lost the word, ‘examine.’ . . . How can you respond to evidence you’ve not been allowed to examine?” (Emphasis added.)
If any legislation should have been filibustered, it was this one. But the Democrats, fearful of being tarred as “unpatriotic” in the midterm elections, did not beforehand make a public case for holding up the measure. While many among the Democratic leadership eventually voted against this bill dishonoring who we are, or used to be, they decided against mounting a filibuster.
It will take a year or more for appeals to this law to reach the Supreme Court. If any one of the five majority justices in this June’s Hamdan v. Rumsfeld decision resigns or dies by then, George W. Bush will be able to assure this nation and the world that he will continue not allowing the enemy to restrict our freedoms—as proved by the constitutionality of the Military Commissions Act.