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The New Americanism


“[The Military Commissions Act] is unconstitutional. It is un-American. It is designed to insure that the Bush-Cheney administration will never again be embarrassed by a United States Supreme Court decision reviewing its unlawful abuses of power.”

Senate Judiciary chairman Patrick Leahy, January 4, 2007

“We can be confident that our program remains—as it always has been—fully compliant with U.S. law, the Constitution, and our international treaty obligations . . . The Military Commissions Act gives the legal clarity and legislative support necessary to continue a program that has been one of our country’s most effective tools in the fight against terrorism.”

CIA director Michael Hayden, in a message to CIA personnel on the president’s signing into law the Military Commissions Act, October 17, 2006. The act allows the CIA to continue its secret prisons—and “renditions” of terrorism suspects for torture in other countries.

Pat Leahy was a local prosecutor in Vermont before he was elected to the United States Senate in 1974. During the tumultuous years since then, he has become one of the few deeply knowledgeable and passionate protectors of the Constitution in Congress. He would have agreed with what the late Supreme Court justice William Brennan told me in the last of our frequent conversations:

“Look, pal, we’ve always known—the Framers knew—that liberty is a fragile

For the past six years, more Americans have become aware of this fragility—as some of our basic liberties continue to recede, now reaching a new, especially dangerous development in the Military Commissions Act of 2006, spawned by the Bush-Cheney administration.

Among its “chilling” provisions, Leahy says, “inserted [by the White House] in the dark of night in the final days before the bill’s passage,” is a greatly expanded definition of “enemy combatants.” This expansion includes “people
that any group of decision-makers selected by the President decides to call ‘enemy combatants’ “—and put into cells.

If these prisoners are legal noncitizen immigrants in this country, they will have no habeas corpus rights to go into court to challenge why they are being held—and they can be “detained” indefinitely. If American citizens are declared “enemy combatants,” they can have lawyers in our courts, but the MCA severely diminishes their rights to due process.

Leahy has now joined with Democratic senators Russell Feingold (Wisconsin) and Robert Menendez (New Jersey) as co-sponsors of a bill introduced by Senator Christopher Dodd of Connecticut that directly challenges George W. Bush in its title: “Restoring the Constitution Act of 2007.”

A subtitle to the bill—intended to counter critics’ charges that these Democratic senators aren’t “tough” enough on terrorists—is: “A bill to provide for the effective prosecution of terrorists and guarantee due process rights.”

As I write this, Pat Leahy is working the Senate floor to add supporters to the bill. If the “Restoring the Constitution Act of 2007” is passed, and possibly has to overcome a presidential veto, the Roberts Supreme Court—during this term or next—will first have to decide on the constitutionality of the Military Commissions Act, which is corrected by this new law. The MCA overturns two previous Supreme Court decisions on these issues.

Those two decisions—Rasul v. Bush (2004) and Hamdan v. Rumsfeld
(2006)—gave both noncitizen and citizen “enemy combatants” access to habeas corpus and to our civilian courts. Once it becomes law, the “Restoring the Constitution Act of 2007” will bring us back to doing justice.

One of the key provisions of this bill includes restoring the writ of habeas corpus for all persons held in U.S. custody. And it “narrows the definition [erasing the MCA’s sweepingly broad version] of unlawful enemy combatants to individuals who directly participate in a zone of active combat against the United States, and individuals who participated in attacks against the U.S. on September 11, 2001.” (Emphasis added.)

Dodd inserted this provision because under the MCA, you could become an unlawful enemy combatant for contributing a small amount of money to a charity on a suspected “terrorist” government list.

In trials of enemy combatants, the new law now bars the use of torture and testimony based on unreliable hearsay evidence.

Also, contrary to the MCA, the United States must “live up to its Geneva Conventions obligations by allowing detainees at trial to invoke their rights under the Geneva Conventions. Furthermore, the accused can retain qualified civilian attorneys at trial instead of military lawyers.” (Emphasis added.) These lawyers have been previously instructed by the Defense Department to disregard the presumption of innocence.

I am heartened to tell you that companion legislation to the “Restoring the Constitution Act of 2007” has been introduced in the House by Jane Harman of California (who was wrongly barred by Nancy Pelosi from heading the Intelligence Committee) and my congressman here in Greenwich Village, Jerry Nadler. It’s worth noting that the chairman of the House Judiciary Committee, John Conyers of Michigan, welcomes this bill.

Among the supporters of these Senate and House bills are the American Civil Liberties Union, Amnesty International, Human Rights Watch, Human Rights First, the Center for Victims of Torture, the Open Society Institute, the Bill of Rights Defense Committee, Torture Abolition and Survivors Support Coalition International, and—I hope—you!

For six years, the previous, Republican-dominated Congress abandoned its constitutional mandate under the separation of powers and obediently deferred to the president’s conviction that, as commander in chief, he could do whatever he wanted without the approval of Congress or the courts.

With the “Restoring the Constitution Act of 2007,” we can take a large step toward repairing the jagged cracks in the Constitution made by the Bush-Cheney Tories. The 1776 Declaration of Independence charged their royal predecessor, George III:

“He has obstructed the Administration of Justice. . . . He has affected to render the Military [now the CIA] independent of and superior to the Civil Power. . . .
[He has been] abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.”

So too have the Bush regime’s descendants of George III. In the 19th century, Margaret Fuller, one of the first feminists, a social reformer, and a colleague of Ralph Waldo Emerson, declared: “This country needs to be born again!”

We can start the awakening with the “Restoring the Constitution Act of 2007.” As Thomas Jefferson prophesied: “The People are the only sure reliance for the preservations of our liberty.”

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