Wednesday, October 18, 2006

Our Greatest Self-Inflicted Wound

It's been a while since I've posted to the Ark, but the actions of my government over the past 24 hours has brought me back to the keyboard.

There are lots of things I take for granted as an American. One of them is my right to a trial and habeas corpus, or, my right to challenge the charges laid against me and my custody. It is perhaps one of the single most important, yet often forgotten, personal individual freedoms we have as members of this society. Tuesday, President Bush seriously challenged the writ of habeas corpus, a common law that dates back to Henry II in the 12th Century. Dare I ask, have we gone this far backwards?

With the threat of terrorism and national security as his backdrop, President Bush signed into law the Military Comissions Act yesterday morning. The Monitor has a great breakdown of the key parts of the bill:

• Establishes special rules for military-commission trials for Al Qaeda suspects accused of committing war crimes. The rules permit the exclusion of a defendant from his trial if classified evidence is being presented, and the admission of hearsay and coerced statements as evidence.

• Authorizes a three-officer military panel to determine a detainee's status as an enemy combatant eligible for indefinite detention in US custody. This is in lieu of the ability to file a habeas corpus petition challenging the legality of the detention in federal court.

• Creates a retroactive legal defense for US personnel who engaged in harsh interrogation tactics from September 2001 to December 2005. Also narrows the range of activities that might constitute a violation of Common Article 3 of the Geneva Conventions outlawing torture and cruel treatment.

• Expands the definition of an unlawful enemy combatant to provide that anyone who offers "material support" to someone engaged in hostilities against the US can be held indefinitely in military detention, regardless of whether he or she actually engaged in hostilities. Also provides that only noncitizens held as unlawful enemy combatants may be tried by a military commission.

The first point goes directly to the heart of the torture debate: can coerced statements be used as factual evidence in a court of law? Most intelligence experts say no. Not to mention that while these statements are being presented in the court the defendants will most likely not be allowed to attend as any statements gathered during "aggressive interrogation measures" (or "torture lite") are usually considered classified information. Not only will the defendants not be able to defend their own statements in person but the decisions around those statements will be decided by, not a group of his/her peers but by a selected trio of military officials.

The second point takes habeas corpus and skins it down to a mere possibility as opposed to a guaranteed right. Instead of a promised opportunity to defend themself in a court of law, the defendant's future is handed over to a military panel (read "tribunal") that decides whether or not this POW will remain a detainee indefinitely (read "for life") or have a shot at a fair trial. In essence, the detainee is considered guilty before having a chance to be proven innocent by a jury of his peers.

The third point actually reaches back into history and tries to protect those military personnel who may have broken the Geneva Convention in their interrogation of detainees. Then it goes a step further by re-defining what is considered toture or inhumane treatment under interrogation procedures. In other words, the United States has taken the Geneva Conventions and re-written them to our own needs, which in the end defeats the purpose of an international agreement, right? But with our country's regard for international agreements I guess thats no surprise.

The fourth point simply enlarges the scope of who can be considered an "unlawful combatant." It's even less clear with the term "material scope" as to who it includes as possible targets thus linking virutally any 'person of interest' to a possible detainee.

The common theme running through this bill seems to be a loss of individual freedoms within the judicial system on a situational basis resulting in a collection of back-room decisions and non-public rulings through an escalation of military legal proceedings that try non-military individuals as military combatants.

Keith Olbermann
had a rather adept analysis of the bill and what impacts it has on the American public. Also, Stanifesto has a great beat on how this all relates to the American sense of nationalism and pride we all feel...maybe less so after a law like this is passed.

1 comment:

Pavlusha34 said...

Not exactly a great time, but it seems the hold on power is beginning to crack. Perhaps too late.