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So Farewell Then, Constitution

The executive branch is tenaciously fighting to control all

Last week, President George W. Bush finally signed the Military Commissions Act into law. With the media’s attention largely fixed on questions of Kim Jong-Il’s mental stability and the accuracy of a study claiming the death of 600,000 Iraqis since the American invasion, the president was busy trampling the nation’s constitution. Shielded by a banner announcing “Protecting America,” Bush signed the act after its predictable success in Congress last month, reasserting his right to deny constitutional protections to enemies of the state.

You might expect the administration’s aggressive attack on constitutional rights to raise a few eyebrows or even hackles in this, the land of the free. Instead, the dissolution of foundational legal principles, which predate this nation, seems to trouble very few in the nation’s mass media. On blogs, on the Internet, on Amnesty International, this dire situation received its due attention. But for some truly inexplicable reason, only a smattering of articles in the major news and a few television commentators denounced the president’s actions. Like the dog that didn’t bark in the night, the nation’s media, as if it were a unitary actor, defaulted on its responsibility to inform the nation.

Meanwhile, the official celebrations were taking place last Tuesday as the executive branch rejoiced over its success in its long-running battle for control over the treatment of terrorists by the use of military commissions. June of this year had brought a bitter defeat for the administration in the Supreme Court case Hamdan v. Rumsfeld, which rejected the legitimacy of military tribunals and their suspension of constitutional rights. But the new Military Commissions Act now hands the president even more power than he held before this summer’s hiccup, and paves the way for more extreme behaviors, all in the name of freedom, democracy, and the American way.

Essentially, the Military Commissions Act gives the president statutory powers to identify national enemies, incarcerate them indefinitely, and interrogate them without any part of the procedure being subject to judicial review. It may not seem so abhorrent at first glance: The law is said to provide the administration with effective power to apprehend terrorists and stop them from posing a threat to Americans, prompting a cozy feeling of security in your belly.

In technical terms, the act strips “terrorists” of their right to habeas corpus, meaning that they cannot challenge their detention in a civilian court. This right, so fundamental to liberty, has been around since the 12th century and is in Article One, Section Nine of the Constitution. Without the right to challenge their imprisonment, there is no guarantee of a trial, swift or otherwise, giving incarcerated “terrorists” full opportunity to enjoy the treatment and facilities at Chez Guantanamo or one of the U.S.’s secret torture resorts.

But that’s just the beginning. The act also allows for American citizens to have their constitutional rights withheld if the government adjudges them a “terrorist.” To be clear, everyone can now be thrown into an alternate judicial system, no exceptions.

Worse still, the definition of “terrorist” is open-ended and subjective. The law states, “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...may direct.”

Other troubling additions include the acceptance of “evidence” from secret sources without consideration of the methods or activities by which the information was acquired. The act also rejects the right to invoke the Geneva Convention, stating that the convention is subject to the interpretation of the Bush Administration—another important contravention of international and U.S. human rights obligations.

What does that all amount to? Basically, anyone who the Bush Administration alleges is a “terrorist,” someone who disobeys his/her allegiance (whatever that might mean) to the U.S., Israel, Britain, Australia and perhaps some other allies, can be indefinitely incarcerated, be denied constitutional rights, be subject to torture, and even be executed following a “trial” by military commission.

For some people that’s irrelevant. Either they justify the law by saying it will be used with discretion to guarantee security and call anyone who thinks otherwise an “alarmist,” or they argue that all perpetrations of injustice are vindicated by the fact that the people concerned are “terrorists” and have therefore waived their right to dignified and just treatment.

But the administration that just successfully enacted a range of extra-constitutional powers is led by Bush—that should be a sufficient reason for fear. It is a government which dishonestly and illegally dragged the nation into a disastrous war, which is responsible for increasing the nation’s susceptibility to further attack, and which has presided over countless contraventions of international and domestic law. And yet, despite this, the Bush administration has now been granted some of the most significant unchecked powers in the nation’s history. The kind of law cherished by dictators.

In response, the best the nation’s media had to offer was fleeting reference—the most prolific protesting found in the Sacramento Bee—and some troubled ruminations from Nicholas D. Kristof ’81-’82. Perhaps journalists and the media feared incarceration, but more likely, it was just the gutless silence we’ve come to know and expect.



Bede A. Moore ’06-’07 is a history concentrator in Winthrop House. His column appears on alternate Tuesdays.

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