On Native Ground
WHEN THE BILL OF RIGHTS FALLS, WILL ANYONE HEAR?
by Randolph T. Holhut
American Reporter Correspondent
DUMMERSTON, Vt. -- Last week, the Republican-controlled Congress, aided by a handful of faithless, fearful Democrats, decided it was more important to win an election than to preserve and protect the Constitution, human rights and the rule of law.
And most Americans don't have any idea what happened.
Congress decided to scrap nearly eight centuries of legal precedent in voting for a bill that gives President George W. Bush unimaginably broad powers regarding the detention, interrogation, prosecution and trials of terrorism suspects.
But life in America goes on. The power of self-delusion has kept the realities of the past five years at bay. Most people don't know what's in the Bill of Rights, let alone know that it has been turned into toilet paper by the President and his rubber-stamp Congress.
While America slept, Congress decided that terrorism suspects will not have the right to challenge their detention in a court of law. This, known as the writ of habeas corpus, was established in the Magna Carta in 1215 and has been the bedrock of the rule of law ever since.
A suspect will also not be able to challenge their treatment while in detention in a court of law. The right to a speedy trial has been eliminated, as has the right of the accused to see the evidence and testimony against him. Coerced evidence is now permissible for use in a trial, if a judge considers that evidence reliable.
This bill not only immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of prisoners, it also allows the President to set the rules for interrogation and determine what constitutes cruel and inhumane treatment and what interrogation tactics it considers permissible. And there is no requirement for the American people to know any this information - it may stay secret indefinitely.
If you think all this only applies to foreign terrorists sitting in cells in Guantanamo Bay, you're wrong. The language in this bill gives the President the power to seize anyone, U.S. citizen or foreign national, who has "purposely and materially supported hostilities against the United States." It codifies the Bush Administration's definition of "unlawful enemy combatant," a definition that previously did not exist in any law book.
John Yoo, a University of California-Berkeley law professor who served as deputy assistant attorney general for President Bush, was one of the administration's chief legal theorists. He recently wrote the following words: "We are used to a peacetime system in which Congress enacts the laws, the President enforces them and the courts interpret them. In wartime, the gravity shifts to the executive branch."
What Congress did last week was codify Yoo's twisted version of our government, a twisted version that was established in a memo Yoo wrote on Sept. 25, 2001.
"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force such as those created by the September 11 incidents," Yoo wrote in that memo. "Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. Those decisions, under our Constitution, are for the President alone to make."
In other words, the President alone has the power to decide what laws to follow in wartime and neither Congress, the courts, nor anything else should be allowed to interfere.
This is the post-9/11 governing philosophy of the President. It is an authoritarian, lawless ideology that violates every established legal precedent. The power to unilaterally decide which laws will be obeyed is something that is claimed by kings or dictators, not leaders of constitutional democracies.
And the Republican-controlled Congress, to its everlasting shame, allowed this to happen.
So if you write a letter to the editor of your local paper criticizing Mr. Bush, if you go to a vigil to protest the war in Iraq, if you send a contribution to a charity or political group that is deemed to be "aiding terrorism," you too could be deemed an "unlawful enemy combatant" and whisked away and jailed without legal recourse.
Sounds improbable? Think something like this can't happen in America? Ask the Japanese Americans who were rounded up and detained in prison camps during World War II, guilty of no crime other than being of Japanese ancestry. Or the thousands of Muslims in this country who were rounded up and detained without charge after the Sept. 11, 2001, attacks.
There have been too many instances in our nation's history when fear has led to gross violations of civil liberties. If you still believe that dissent is the highest form of patriotism, there's probably a spot in the Bush Administration's gulags for you. And depending on where you live, most of your neighbors won't even notice nor care if you disappear.
This is how police states begin. Few cared when the Patriot Act hurriedly became law after 9/11. Few cared when we found out the Bush Administration spied on Americans and never even bothered to get court warrants. Few cared as more and more government information became classified. As long as we're protected and safe from those evil terrorists, we'll happily surrender our rights.
The Republicans claim this law needed to be enacted quickly so this nation can effectively fight the war on terror. It is a lie. The hundreds of prisoners in Guantanamo and other prisons around the world will continue to be held until the Bush Administration figures out a way to handle their cases that passed legal muster. There is no need to rush.
But the Republicans wanted to rush. They wanted to have a law they could use against Democrats in the November mid-term elections. And too many Democrats were afraid of the political attacks that would come if they voted against this bill.
The election season is the worst time to be considering matters of constitutional and international law. The fears that this issue will be politicized by President Bush and the Republican Party are well-justified. But this law is something that cuts to the very heart of who we are as a nation. Do we allow the President to not only flout the law, but rewrite it to suit his needs? Or are we still a functioning constitutional democracy where Congress enacts the laws, the President enforces them and the courts interpret them?
The federal courts might overturn this law, but even this is questionable. If a detainee under this legislation no longer has the right to a fair trial or to hear the evidence against him, how can he bring a legal challenge to court? This legislation even contains restrictions on judicial review of its provisions.
President Bush will talk about how the provisions it contains will make us safer. That is a lie. All it will do is tell the world that for all of his glittering rhetoric of spreading freedom and democracy around the globe, the United States really stands for repression and the arbitrary abuse of power.
The American ideals of life, liberty and the pursuit or happiness, of equal protection under the law, of having the freedom to say, write, think and worship as we please, of being secure in our homes and being free from illegal searches and seizures - all these are now under attack.
Those of us left who still care need to start waking up the rest of our countrymen, while there's still some time left.< Randolph T. Holhut has been a journalist in New England for more than 25 years. He edited "The George Seldes Reader" (Barricade Books). He can be reached at email@example.com.