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I’m mad as hell, etc.

network.jpgAs I’ve mentioned before, I was in Germany for most of last and this week (seriously, Oktoberfest is the best). On the flight home, I learned that the Senate followed the House’s lead and approved the antiterrorism/detainee bill, known as the Military Commissions Act of 2006. This is something I’ve been meaning to blog about for a while, and excuse me as I now go on my long-overdue diatribe - I may not be saying anything that other “lefty” bloggers haven’t already said, but one more voice is still one more voice.

This legislation is a fucking outrage. To everything that America supposedly stands for. To the fact that we’re supposed to be above the type of behavior of those whom the President and his administration raise their battle cries against whenever it’s politically convenient. To the consumers of American media who are barely being told about the true import and impact of this legislation. To those detractors who are being told by some on the right that any opposition of this legislation is un-American. To those voters (which is, per capita, an unfortunately small amount of our citizenry to begin with) who put these Senators and Representatives into office hoping they would do what is truly best for this country.

What’s the big deal, you ask? Well, let’s look at just some of the things this legislation does.

“Unlawful Enemy Combatant.” The whole focus of this bill is on a so-called “unlawful enemy combatant,” which is broadly and vaguely defined in the legislation as being any “person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant.” (Section 948a(1)). Ok, so this excludes those who are part of an official State armed force. I’m okay with that. I’m also okay with the inclusion of those who “engage in” hostilities against the U.S. or our friends. These two definitions combined cover al Qaeda and their friends, which is the point. My problem is with the vague inclusion of those who “purposefully and materially” support hostilities. I could maybe be okay with the direction this is going in, but not as it stands now, because it’s too vague and troublesome, leaving the door open for the Administration to basically decide who constitutes purposeful and material support. Plus, this definition presumably includes legal citizens of the U.S. Now, while a citizen of our country who helps plot against the nation is certainly worthy of being considered an enemy of the state, it’s appalling to think that some of the other things that I’m about to discuss could apply to our own citizenry. Or even to citizens of our so-called friendly nations (what few we have left). And again, what the hell does “purposefully and materially” even mean? A man who gives his brother five bucks, and the brother then uses that money to buy matches to light a bomb, could that fall within this definition? I have no doubt that many in the administration would say “you bet.” This is precisely the kind of situation where we should see some of that ever-so-annoying legalese that we all hate but which is sometimes necessary, so we can know precisely what we’re dealing with. Without it, Congress is just leaving lots and lots of squiggle room.

Defense Counsel. The bill outlines the setup and procedure for the military commissions which detainees are to be tried before. Among other things, it says that any detainee who actually gets to face prosecution (more on that in a bit) is entitled to have military counsel (that is, a JAG) defend them. (Sections 948k and 949c). Where things get interesting is with the fact that it says that a prosecuted detainee is also entitled to civilian counsel (that is, a private attorney of their choice), but only if that attorney is deemed “eligible for access to classified information that is classified at the level Secret or higher.” (Section 949c(3)). Now, excluding former government and military attorneys, there probably aren’t a lot of private attorneys who already have such clearance. And is it really that hard to believe that most civil attorneys seeking such clearance in this situation would find their path ever-so-slightly blocked? Which means these detainees are stuck with their military counsel. Which isn’t to say they’re getting bad attorneys - don’t get me wrong. I am good friends with two Army JAGs who I have no doubt are excellent attorneys. But that’s not the point - unlike many other countries, out nation has always prided itself on allowing a defendant to feel he is getting a fair trial, and that includes the counsel of his choice.

Now we start looking at the military commissions themselves, and things get even darker.

“Statements obtained by torture.” Ok, my big problem with this is that it basically excuses past bad behavior. See, the bill acknowledges that the Detainee Treatment Act of 2005 banned the use of “cruel, inhuman or degrading treatment” by our government. (Sections 948r(c) and (d)). But then it goes on to say that testimony received by such treatment can be used anyway, as long as the bad treatment happened before the Detainee Treatment Act was enacted, i.e., before December 20, 2005. Because, you know, we didn’t know these kinds of things were wrong before there was an official ban. In such an event, the testimony can be used as long as a judge finds it reliable, of probative value and in the “interests of justice.” Reliable? Despite the fact that the majority of evidence out there suggests that testimony-from-torture is anything but reliable, do we really believe in most instances that the testimony won’t be deemed “reliable” by a judge (when the only relevant evidence would presumably be testimony from those involved saying the treatment wasn’t really so bad as to coerce untrue statements)? And as for the “interests of justice,” the government will simply shout “national security” and I guarantee a judge will be disinclined to go against that in 99% of the cases. Hell, I worked on a case where the Department of Defense was a co-defendant, and everytime the government referenced “national security,” the judge bent over backwards, and this was just a little civil case that was unrelated to anything quite as serious as what these cases will be about. In other words, Congress just gave the President, the Department of Defense, et al. a free pass to ignore last term’s Hamdan v. Rumsfeld decision.

Defendant’s right to view and respond to evidence. During a trial, as one might expect, the accused’s attorney has a “reasonable opportunity to obtain witness and other evidence” except for where there’s classified information involved. (Section 949j). When the evidence is classified, the accused gets an alternate version, if practicable. This can be either a copy of the relevant documents with the classified information deleted (the classic “blacked-out” document), a summary of the information or an alternative statement which lists the facts which the classified information “would tend to prove.” Now, think about this for a second. Instead of getting the actual information which is going to the jury and which is going to be used to possibly convict him, a defendant may end up with a simple summary or a list of the facts which the prosecution thinks the evidence proves. And in cases involving terrorism, which is what these prosecutions will be all about, it’s certainly reasonable to believe that much of the information is going to be deemed classified, right? Which it probably should be, particularly where it relates to future potential attacks, the identities of confidential sources, etc. But if it can go before the judge and jury (the actual military commission), there must be some way to get this information before the accused in a way that is useful to him, which he can find trustworthy, and yet which still protects the information. Now I don’t know enough about these things to propose that solution, but it just hits my sense of our judicial system as wrong that a defendant can be convicted by evidence that he never saw.

Oh, and this also includes exculpatory evidence. So if the prosecutor knows of some evidence which hurts their case but which would really help the defendant, he’s only obligated to turn it over where it’s not classified. If it is classified, we’re back to the summary/list approach, meaning an accused may only get some piece of the evidence that’s out there potentially holding the ticket to his freedom and this, again, simply goes against one of the fundamental aspects of our criminal judicial system.

“Fuck the Geneva Convention.” “No alien unlawful combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.” (Section 948b(g)). So fuck the Geneva Conventions, fuck the Supreme Court and its Hamdan decision and fuck the international community and its standards.

“Fuck the right to a speedy trial.” Section 810 of the Uniform Code of Military Justice, which relates to the right to a speedy trial, does not apply to the military commissions under this legislation. (Section 948b(d)). So the detainees can be held for a nice long time before they’re ever put on trial. According to one report I read, we’ve had over 700 prisoners in Gitmo, but only about 10 have been charged so far. And this bill basically authorizes this practice to go on indefinitely - round folks up, throw ‘em in a camp (and pretty much don’t worry about ever having to support the round-up), and then give ‘em a little torture (but don’t call it “torture”). Congress hereby gives this practice a thumbs up.

Habeas what now? The most remarkable thing of all about this legislation is that it basically kills habeas corpus. Habeas corpus means that someone being detained by the government has the right to challenge, in a court of law, his treatment and detention. It’s the ultimate “check” against the potential dictatorship that any government can easily become. And it’s been around since the Magna Carta was signed in 1215. And now it’s kaput, because this bill says that any detained alien combatant is not entitled to challenge their detention, or their treatment, in any civil court. So they can’t present a challenge to argue that they’re innocent and wrongfully being detained. As Senator Arlen Spector said (before voting for the bill anyway), the suspension of habeas corpus basically takes “our civilized society back some 900 years.” Way to go guys - habeas shmabeas!

And of course, without the right to go to civil courts, this also means that the administration’s interpretations and applications of the Geneva Conventions can no longer be challenged in civil court. So if the President or the Secretary of Defense decides that a form of interrogation is ok and, in their opinion, falls within the Conventions, that’s it - game over. No more messy Supreme Court Hamdan getting in the way and mucking things up.

Think about all of this. The administration has just been given permission to round up pretty much anyone it feels like, and toss them into a military detention center. Torture them under secret interrogation techniques which can’t be challenged in court and which the public probably doesn’t even know about. If the detainee is “lucky,” they’ll eventually face a military commission where they’ll be prosecuted, probably without the attorney of their choice, probably without being able to see all of the evidence actually before them, and probably without having a fair opportunity to face their accusers (where the witness are considered top secret sources, for example). And there is no ability to appeal any of this to any civil court - not the detainment, not the interrogation techniques, not the commission proceeding. Nada.

Now some might argue, “yeah, but these guys are terrorist enemies, so fuck ‘em.” Well, I would argue that we should rise above our enemies, and treat everyone with the same standards we apply to ourselves. And this legislation doesn’t do that. Worse yet, it’s folly to assume that every detainee is actually guilty, and it’s utterly disgusting to think that innocent people can be treated in this manner and will be treated in this manner.

This whole situation is appalling, and Congress’ basic willingness to bend to the Administration’s will is appalling. And this comment isn’t just directed to the Republicans, who were the majority of the supporters of the legislation. It’s also directed to those Democrats who helped it out. And it’s directed to those who just sat by silently, and didn’t put up any real fight aside from a useless “no” vote. In other words, this isn’t about partisanship. Rather, anyone who voted for this bill, Democrat and Republican alike, should be ashamed. So should anyone (again, Democrat and Republican alike) who voted against this bill but didn’t fight it with utter outrage, and who didn’t scream to the high heavens about what this legislation would do to the principles of our nation. Shame on them all.

Am I an unpatriotic liberal or, worse yet, an America-hater, because of my opinion here? I know some would argue that I am and dismiss me with little else to say, but it should be readily obvious that quite the opposite is true. Despite its flaws (principally of which is the lack of German beer halls - seriously Congress, isn’t this something you cats could get on?), I love this country and think it’s the best thing going right now. Unquestionably. My family has received untold benefits for being in this country for over a century, and I’ve personally been given opportunities in my life that I wouldn’t have had in many other places. Including the opportunity to have my voice heard and the freedom to make this very rant. And it’s because I love our country that I want to see it maintain its dignity, and keep its respect. Sadly, this legislation does just the opposite.

In fact, while I was in Germany last week, I was sitting in the hotel lobby with another American friend, when a German man tried to strike up a conversation with my friend. His English seemed extremely limited, and our German was no better, so the conversation didn’t get very far past the man’s inquiry as to whether my friend was American. But after he said that yes, he was an American, the man’s expression basically conveyed all that needed to be known, as he shook his head woefully and asked “your President is still this Bush?”

The world continues to shake its head at us. Not just at the fact that we reelected Bush. Not just at the ongoing atrocities our government tosses at us with every ongoing day. But also at the apparent uncaring or willful blindness of our public, which seems far too willing to let these atrocities continue. And if changes aren’t made, starting this November with the upcoming elections, expect that international head to shake at us once again.

And we’ll deserve it.

And we’ll have no one to blame but ourselves.

| Comments (5)


Thank you. I was having a bad day, and then I read this.

I had just finished reading about airport security who won't allow lip gloss onto a plane--fearing it to be a possible explosive--unless it was stored in a ziplock bag. People commenting on the story seemed fine with this, not bothered with the fact that if it is actually possible to blow up a plane with a lip-glossed sized tube, the ziplock is going to do fuck all.

A related story had airport security disallowing bottled baby food unless it was labeled as baby food. In the particular incident mentioned, an airport official offered to bend the rules and allow some, but not most of the unlabled baby food on the plane. Again, very few people noted that that either small jars of unknown substances a potential threat or they are not. Because if they are, then none should be allowed on the plane, and it shouldn't matter what the label says (If I were a terrorist, would I above dishonestly labelling a jar?), and if they aren't...yada, yada.

These may be small incidents, but they speak to the larger situation in which people seem content to put logic and common sense on a shelf for storage and carry on with their lives in the manner that they are instructed to do so. The most terrifying people--anywhere in the world--are those who follow without question.

So, thanks again. I'm going to get up right now, sit up, and go to the window.


I found it gruesomely intriguing that the Republican talking points (including the WSJ's "Jack Bauer Insurance" opinionjournal piece - http://www.opinionjournal.com/editorial/feature.html?id=110008930) the past couple of weeks included references to Kiefer Sutherland's "24" character Jack Bauer and his well-intentioned, "for the good of the country" criminal interrogation techniques as the barometer of the American public's support for expanding the President's rights to torture, or should we say "interrogate," detainees (similarly, that week's box-office leader was "Jackass 2," so I think we've pretty much eliminated any need for scientific opinion polls to measure the intellect or morality of the typical American). Now, I'm as big of an adrenaline-junkie Jack fan as the next guy, but isn't "24" a work of fiction? And didn't Jack's last act of vigilante justice serve to bring down a corrupt and incompetent President of these good ol' US of A? By the way, I think Gregory Itzin's portrayal of the President as a self-important, deluded weasel was the most accurate representation of the current administration to be found anywhere on the Fox network. Is the irony lost on these astute observers of the American psyche? Oh, if only we had some real-life Jack Bauers lurking in the halls of Langley!

To follow up on the whole insurance for spies angle, we acknowledge that it is not just an American sense of fair play, but a widely accepted doctrine of international justice to hold individuals accountable for their actions in time of war (and what could be more American than selling insurance against prosecution for criminals?). The Nuremburg trials established clear precedents that not only will "I was only following orders" not excuse illegal behavior, but that the superior officers who issued those orders should be tried for their war crimes. We've locked up the Jack Bauers of Abu Ghraib; when will we shine the light of justice on the despicable acts of Rumsfeld and his henchmen? Are the members of Congress now complicit in war crimes by explicitly condoning illegal acts in an unconstitutional law? Can we add another budget line to cover insurance for them, too? Or is this just another anti-climactic election year ploy so they can puff and preen for the fearful voting public before the Supreme Court inevitably declares this new law to be unconstitutional. Who's terrorizing whom now?

"We have nothing to fear but fear itself." - FDR

"We have met the enemy, and he is us." - Pogo

I found the sad, head-shaking question, "and your president is still this Bush?" disheartening both for the fact that, indeed, this guy is still our president but, most tellingly, because the man posing the question is a German. How much cultural/historical memory is at play in that simple question in somewhat broken English! It must seem inconceivable to this man that we seem to be making the same mistakes that his countrymen made in the 1930s in the name of security and patriotism. The situations are certainly different and the comparisons, therefore, not perfect; but then, why do I feel so nauseous when I think about what our nation is becoming? Why do I fear what our government is turning into and why do I doubt that this ludicruous law will not merely be used against "enemy combatants?"

How much longer will we retain the right to engage in these rants?

God bless America indeed.

"Well, I would argue that we should rise above our enemies, and treat everyone with the same standards we apply to ourselves."

I wuld argue that we are, by not slitting their throats, cutting off their heads, forcing them to convert to christianity or parading their mutilated and charred corpses around in public as celebration.

If you ask me, you always have the moral highground over an enemy that has no morals.

To fozzy -

"I would argue that we are, by not slitting their throats, cutting off their heads, forcing them to convert to christianity or parading their mutilated and charred corpses around in public as celebration"

That very well may satisfy the first part of the author's comment that you quote ("I would argue that we should rise above our enemies") but it kind of ignores the second part ("and treat everyone with the same standards we apply to ourselves.") And I think that it's not about having the moral highground over an enemy, but of not betraying one's own moral and ethical standards.