Column No. 127 By Steven Jonas, MD, MPH - NOVEMBER 2, 2006
In my previous essay on this subject I examined the similarities between the US Enabling Act of 2006 (referred to in the United States Code by the bureaucratic-sounding name of “The Military Commissions Act”) and the Nazi German Enabling Act of 1933. I also explored how the US version virtually emasculates major sections of the US Constitution. This week I am going to briefly review the powers that the Act gives to George Bush and then briefly describe just what are the reasons that he wants them. Guess what? It ain’t about “fighting flanking maneuvers” (I mean “terrorism”).
What the Act does (Wikipedia, “Military Commissions Act of 2006”):
* The Act establishes a new set of US Military Commissions, alongside of those that already exist and have existed in one form or another since the US Army and Navy were founded. These new Commissions are for the purpose of trying “alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses.” The purview of the law is retroactive, indefinitely. That is, it is ex post facto legislation (which just happens to be specifically prohibited by Article I, Section 8 of the Constitution).
* An "unlawful enemy combatant" is “a 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” or before the passage of the Act “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” (there’s that ex post facto application, again).
* "Alien" is defined as "a person who is not a citizen of the United States.” However, the Act also states that “Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.”
* No persons subject to the purview of the Act “may invoke the Geneva Conventions as a source of rights.” The President is authorized to interpret the meaning of the Geneva Conventions as he chooses.
* Persons detained under the Act have no right to a habeas corpus hearing. There is no guarantee of a speedy trial, no protection against being required to testify against oneself, no right to any pre-trial hearings, no guarantee against being held in custody indefinitely without any trial of any kind, whatsoever. There is no right to civilian counsel unless that counsel has “Secret or higher” security clearance (which means that there is no right to choice of counsel). Hearsay evidence, evidence obtained without a search warrant, evidence obtained when an unspecified “degree of coercion” (most people would call this “torture”) has been applied, are all permitted, but access to evidence termed “classified” is not. A “guilty” vote, even when a death sentence might be imposed, requires only a two-thirds majority of the members of the commission present at the time the vote is taken. Persons charged are protected against double jeopardy.
OK, so that’s the Act in a nutshell. So why does Bush want it? Before getting to the question, we do have to examine carefully to whom the law applies. On the one hand it says clearly “aliens.” Many Americans, even among those opposed to both Bush and the Act, like Human Rights Watch, have said “phew, well it only applies to aliens, so we really don’t have to worry too much about it.” But does it really only apply to aliens? There is that “breach of allegiance to the United States,” ”aids an enemy of the United States” clause.
The Act, specifically ignoring the Constitution itself by, for example, creating ex post facto legislation and wiping out habeas corpus absent rebellion or invasion, thus unconstitutionally gives Bush the power to ignore the Constitution on his own authority as well. Further, with is numerous unconstitutional “Signing Statements,” unchallenged by Congress, he has said that he can interpret any piece of legislation anyway he wants and indeed can ignore completely any bits he doesn’t like. The Act gives Bush the power to interpret the Geneva Conventions any way he wants to without consulting either the Congress that ratified them or any other of its signatories, after all, and they, according to Article VI of the Constitution, are part of the supreme law of the land.
So what is to prevent him from interpreting the “allegiance” clause to apply to US citizens who aid an “enemy alien,” as defined by the law? Nothing, as far as I can see, because any person arrested under this Act is denied access to the courts to contest the arrest, as Keith Olbermann pointed out immediately after its passage. So folks, don’t sleep easy. Under this “the Constitution is just a scrap of paper,” “the Unitary Executive is all,” President everybody within his reach is subject to permanent incarceration at the discretion of this President or his designee. Where, you might ask? Well in Nazi Germany they called those places in which persons were incarcerated under the same kinds of laws and by the same means “concentration camps.” (It has been reported that Kellogg Brown & Root, a Halliburton subsidiary, is constructing a huge facility at an undisclosed location to hold tens of thousands of Bush's "unlawful enemy combatants." Why could not Americans be among them? 10-10 http://www.alternet.org/rights/42458/? It has been speculated in fact, that there are up to 800 of such facilities available for potential use, http://www.sianews.com/modules.php?name=News&file=article&sid=1062).
So then why did Bush want this law and why did he want it so badly? He doesn't need it to go after "terrorists." He has had plenty of tools to do that, and in fact has used them little. It happens that Bush has never offered even one little reason why the present law doesn’t work for him in “fighting flanking maneuvers” (oops, I mean “terrorism”) and why he needs this one. He has had large numbers of men under permanent confinement for a number of years now. He has had a military court system that under pre-existing US law is plenty tough enough and military prisons are tough enough without using torture, even of the simple hooding, sensory deprivation (shown on the front cover of Newsday some time ago), water boarding type. Why doesn't he want to use that system? Why does he keep saying “now we can really get them” when he certainly could have “gotten them” before (that is, if he had the evidence --- details, details). Why secret courts? With evidence, one certainly could convict real terrorists in regular US military courts.
Well first, the Georgites are terrified of what would likely, or least might well, come out in open court under the time-honored procedures provided for by the US Constitution. Apparently, many of the current prisoners are totally innocent of any sort of “crime against the United States” and were picked up on whims or at the behest of other intelligence services (and now we will never know). Many of the captives are apparently (now we will never know) nothing more than political activists. The Georgites are terrified of what the prisoners might say in open court on direct examination about how they have been treated and about the total lack of evidence for the US incarceration of them in the first place.
If those who indeed were terrorists or involved in some way in terrorist plots, the Georgites are terrified about what they might reveal about what really happened in the plots, successful or not, possible US or other Western complicity in them, what they might know about the US letting Osama go, where he is now, that he might indeed be a US asset, very useful for Georgite propaganda purposes, and so one and so forth. These are indeed potentially dangerous men, potentially dangerous that is to the political interests and political power of the Georgite Regime.
So if he doesn’t want/need it to “fight terrorism,” why does he want it? For two reasons. First, it does establish the “Unitary Executive” that has been a gleam in Cheney’s eye since the Watergate days. As I showed last week, it shreds most of the basic individual rights guaranteed until now by the Constitution. It has established the precedent that Congress may amend the Constitution on its own authority without bothering to go through the amendment process that is detailed in Article V of the Constitution. It also gives the President the power to amend the Constitution on his own authority through the “interpret the Geneva Conventions as he chooses” clause. For this “to-hell-with-the-law-I’ll-do-what-I-want” President (again see the “Signing Statements” and what they say) there is one kind of legal precedent that is important: the kind established in this law. Remember, he took the nation into war on the basis of a very vague Congressional resolution on “combating terrorism,” saying that it was enough. With this law as precedent, this President could go to town further shredding the Constitution, for example, on his own authority because of the authority it gives him to “interpret” the Geneva Conventions.
Second, it now becomes obvious that the primary intended use is for future domestic repression. The Georgites know what will begin to happen in this country if: Bush starts trying to use the powers given to him by the US Enabling Act to begin to selectively lock up opponents of the regime such as, for example, anti-Georgites who publish regularly on one or more websites; the War on Iraq continues and the opposition to it becomes overwhelming and reaches the street demonstration stage; the economy goes further south for the average American worker, what the numbers are put out by the Georgites and a militant organize labor movement is re-born; the regime attempts to fulfill its pledges to the Christian Right to criminalize personal beliefs and behaviors not in accord with their religious dogma; Bush further expands his dictatorial powers through actions of the Republican Congress coupled with is “Signing Statements;” a Georgite Supreme Court endorses all of the above and maybe even outs itself totally out of the business of protecting the personal rights and liberties guaranteed under the constitution; Bush cancels the 2008 elections by creating another 9/11 and declaring a “National Emergency.”
Back at the beginning of 2005 I wrote a series in this space entitled “The Coming Second Civil War.” The US Enabling Act of 2006 has brought it several giant steps closer.