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David Wallechinsky Headshot

Bye, Bye Bill of Rights

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It is shocking that sixty percent of the members of Congress, by voting in favor of the Military Commissions Act of 2006, would hand to the president of the United States the right to interpret, without Congressional oversight, the Geneva Conventions, to waive the right of habeas corpus, to authorize the use of information gathered through torture, and to, in effect, establish a separate judicial system that will be run out of the White House, willfully giving up powers that until now were reserved for the legislative and judicial branches of the government. I wish that my father, Irving Wallace, was still alive because, exactly thirty years ago, he wrote a novel, The R Document, that predicted just such a destruction of traditional civil liberties in the United States. In the novel, the president takes advantage of a generalized state of national fear to propose a Constitutional Amendment that would allow the president to suspend the Bill of Rights in case of a self-declared national emergency.

The text of the Military Commissions Act of 2006 (formerly known as the "Bringing Terrorists to Justice Act") is smooth and fair-sounding, but it is filled with loopholes created by a combination of vaguely-defined phrases and carefully parsed definitions. For example, the section banning torture contains an exception, namely "pain and suffering incidental to lawful sanctions." This is a phrase that is used in the United Nations Convention Against Torture to refer to practices that are internationally accepted, such as imprisonment. However, there is nothing to stop the Bush administration from redefining that clause, as it has so many others.

One of the many disturbing aspects of the Act is that the president now has the right to declare any foreign citizen, including a legal resident of the United States, an "unlawful enemy combatant" if that person is suspected of giving money to an organization that supports terrorism, with the term "terrorism" defined by the president. Supporters of President Bush would do well to keep in mind that these new powers given to Bush will also be available to the next president of the United States...say, Hilary Clinton. The law's wording is vague enough to allow President Clinton #2, or someone more maniacal, to kidnap and detain forever a broad range of people that most Americans would not consider terrorists.

Then there is the question of whether the Act gives the Bush administration permission to detain American citizens. Section 948a of the Military Commissions Act of 2006 defines "unlawful enemy combatant" as "an individual engaged in hostilities againtst the United States who is not a lawful enemy combatant." Does the phrase "an individual" include U.S. citizens? Apparently we will have to wait for President Bush to make that decision.

The international implications of the Military Commissions Act are appalling. For one thing, the rest of the world now knows that the United States has declared it legal to kidnap anyone, including world leaders, if the president of the United States declares that person a supporter of a terrorist organization. It would not be surprising if the governments of other countries exercise their presumed right to copy the United States and do a bit of international kidnapping themselves.

The world is filled with dictators and governments that repress their own citizens. Please excuse me for promoting my own book, but I write about a lot of them in Tyrants: The World's 20 Worst Living Dictators. Many of these dictators would treat their citizens in an even more brutal manner if the United States and the European Union did not stand on the high ground of human rights and apply pressure on them. With the Military Commissions Act, we can say goodbye to the last remnants of American moral authority. In fact, some repressive regimes, like those in Iran, Syria, China and Uzbekistan, could taunt the U.S. by using our Military Commissions Act as a model, and copying it word-for-word into their own bodies of law.

So how did it come to pass that the Republican members of Congress, with the help of 44 Democrats, would choose to shove through a law that not only reverses common assumptions about human rights in the United States, but actually gives up some of their own powers to President Bush?

I think this story goes back to the U.S. War Crimes Act of 1996, an admirable piece of legislation that was written and promoted by Republicans, and which required Americans to abide by the same standards that we demand of others. As I have pointed out previously, declassified memos make it clear that the Bush administration was fully aware of the fact that they planned to engage in actions that violated the War Crimes Act. That's why they created convoluted excuses that they hoped would absolve them from prosecution, like creating a category of prisoners known as "unlawful enemy combatants" that was not covered by the Geneva Conventions, redefining the word "torture," and claiming that because the prisoners were not held inside the boundaries of the United States, they were not subject to U.S. law.

The vast majority of Americans were unaware of the U.S. War Crimes Act. The Bush administration, on the other hand, was almost obsessed by it. In 2005, Senator John McCain proposed an amendment to a defense appropriations bill that banned the use of torture, as well as cruel, inhumane or degrading treatment of prisoners in U.S. custody. President Bush threatened to veto the bill, but then made a deal with Congressional Republicans: he would sign the bill if they would pass the Detainee Treatment Act of 2005, which would remove habeas corpus rights for prisoners held at Guantánamo Bay. Bush got his Detainee Treatment Act and, on December 30, 2005, he signed the anti-torture amendment. But then, having gotten what he wanted, he tricked his fellow Republicans by adding a "signing statement" claiming that, as president, he was free to ignore the anti-torture amendment.

For six months, the Bush administration was free from worries about being prosecuted for war crimes. Then, on June 29, 2006, the Supreme Court, in Hamdan v. Rumsfeld, declared that all detainees did in fact deserve the rights due prisoners of war, no matter where they were held and whether or not they belonged to a national army. Members of the Bush administration were back in danger of prosecution. So they created what came to be known as the Military Commissions Act. Tucked away in this 96-page bill, in section 6b, is a clause that retroactively protects members of the administration and any American who committed torture, whether military, CIA or contractor, from prosecution for any act against a prisoner since September 11, 2001.

What with Bush's low approval ratings, the president and his administration could not count on Congressional Republicans to pass this Act just because Bush asked them to. So they ratcheted up the terrorism fear level and, six weeks before an election, forced the Republicans to rush through the Act in order to look tough on terrorism just before Americans went to the polls.

And how did the Bush administration raise the fear level? Take a look at the Gallup Poll results relating to President Bush's handling of terrorism. In July of this year, more Americans disapproved of his handling of terrorism than approved. Four weeks later, there was a reversal and a majority approved of Bush's anti-terror performance. What happened in between?...the arrest of more than twenty suspects in a terrorist plot in England that was aimed at destroying ten airplanes. This incident was a perfect launch for the Bush administration's pre-election Be Afraid of Terrorists campaign. Even Bush's overall approval rating went up, albeit by a modest 3%. The Bush team sure got lucky on that one. Or was there more to it? Maybe it's just my fertile imagination, but...

I recommend reading the article about the plot by Don Van Natta, Elaine Sciolino and Stephen Grey that appeared in the New York Times on August 28 and that is available online through the TimesSelect service or on various unofficial sites. The article makes clear that the plot was real. However, it was not imminent. British officials apologized, two weeks after the fact, for the exaggerated, panic-inducing statements they had made at the time of the arrests. Naturally, the dire warnings made headlines, while the retractions and apologies went largely unnoticed. The most intriguing revelation in this article is that British officials at Scotland Yard felt in complete control of the plotters, who had not yet made flight reservations and two of whom had not yet even obtained passports. The British spies wanted to continue their surveillance of the plotters. Unfortunately, Scotland Yard was forced to act quickly because, thousands of miles away in Pakistan, the Pakistani government, without informing their British anti-terror colleagues, arrested a man with dual British/Pakistani citizenship who was, presumably, vital to the plot and whose arrest was immediately known to the plotters. From the Times: "Several senior British officials said the Pakistanis arrested Rashid Rauf without informing them first. The arrest surprised and frustrated investigators here who had wanted to monitor the suspects longer, primarily to gather more evidence and to determine whether they had identified all the people involved in the suspected plot." So if the hijackings were not imminent and the British wanted to wait before making any arrests, why did the government of Pakistan's dictator, General Pervez Musharraf, arrest Rashid Rauf when it did? So far, there has been no official explanation.

As I said, maybe I just have too fertile of an imagination, but one thing is certain: over a period of just seven weeks, that arrest triggered the British arrests that set off a fear-of-terrorism panic that gave President Bush extra ammunition to pressure Congressional Republicans, who then rushed through passage of an anti-terrorism bill that transferred new powers to the executive branch while, at the same time, immunizing President Bush and others from prosecution for their violations of the U.S. War Crimes Act.

Some guys have all the luck.