by Thomas Miller
In a speech on Sept. 6, President Bush unintentionally reminded us what conditions gave rise to torture in Abu Ghraib and other prisons. He argued that an “alternative set of procedures” used to interrogate suspected terrorists who “stopped talking” in secret CIA prisons has saved this country from terrorist attacks and urged Congress to support this policy.
Two weeks ago, the U.S. was in the midst of arguably the most controversial debate since the detention of Japanese-Americans during WWII. The result reveals a truly frightening lack of checks, balance, or commitment to basic American principles.
Both houses of Congress passed the Military Commissions Act of 2006 and ceded to the majority of the President’s positions on how to deal with anyone deemed to be a suspected terrorist. The McCain-Warner-Graham “rebellion” was meaningless—a self-serving attempt to retain individual dignity. Several aspects of the bill are worth mentioning.
First, Congress suspended the right to habeas corpus—the means by which individuals can challenge the legality of their detention—of anyone deemed to be an “unlawful enemy combatant,” a legal definition Bush manufactured without check in the wake of 9/11.
Who are “enemy combatants”? A recent MSNBC article reported that 14,000 individuals are in detention in various locations around the world. Only a handful have been charged with any crime and can be held indefinitely.
Second, Congress expanded the definition of “unlawful enemy combatant,” to include anyone who has “materially supported hostilities against the U.S.,” and anyone who “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.” With a Secretary like Rumsfeld, who needs to question indefinite detention?
This is no small ordeal. The founders wrote in Article I of the U.S. Constitution, “The Privilege of the Right of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Unless 9/11 set us into a perpetual state of rebellion or invasion, the suspension of habeas corpus is, at least for American citizens, unconstitutional.
Third, the Act leaves interpretation of the Geneva Conventions’ Article 3—banning “outrages on human dignity” and other things such as torture—to the President. This is disconcerting, to say the least. Bush recently stated that Article 3 was too vague and should not apply at all.
Fourth, the Act strips the judiciary of jurisdiction to hear cases on Geneva Convention grounds—a basic check on Executive authority.
Last, Congress conflated 9/11, Afghanistan, Iraq and terrorism generally. Administration lawyers justified the suspension of the Geneva Conventions after 9/11 only for “non-state actors” (al Qaeda) and the “failed state” of Afghanistan. Even those conclusions are questionable, but now Congress has transplanted these policies to include basically anyone the Administration chooses to name an “unlawful enemy combatant” in any context. U.S. citizens are not exempt.
What to do now? What happens when our government fails? Outrage certainly is warranted. One of my hopes is that ASWC can become an activist voice for students more generally, especially in collaboration with other student organizations. For example, what would it mean for 50 colleges to issue a coordinated statement in opposition to, or in support of, a political issue? Students can again become a voice for change.
For this reason, I introduced a resolution to ASWC to express strong condemnation of the Military Commissions Act of 2006 based on many of the concerns above. We will vote on the Resolution on Sunday, and I encourage you to contact your Senators with your thoughts. If passed, I will invite the faculty to pass a similar resolution and solicit other student governments to join us.
Certainly terrorism raises important and troubling questions that must be taken seriously. However, I believe we can address these questions without sacrificing our nation’s fundamental principles. Congress’ Act reflects our government’s continuing willingness to throw all rules by the wayside, consolidate power, and suppress democratic checks. With the mid-term elections on the horizon, I hope we can regain dignity on the international stage by reaffirming our country’s commitment to human rights—our most effective foreign policy tool.