AMERICA'S NEW ANTI-TERROR LAW

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both. "
~ Benjamin Franklin.

If you liked the PATRIOT Act, you're gonna love the Military Commissions Act, signed into law today by President Bush. It kind of reminds me of Turkey's new anti-terror law (TMY). According to the LATimes, Bush signed the bill, surrounded by military officers, among others.

Hey! Do you think Buyukanit and his gang stand around Sezer when Sezer signs bills into law?

If you want to believe the administration, The Military Commissions Law is supposed to protect American citizens, but those concerned about civil rights have their doubts, from The Progressive:

It [Military Commissions Law] allows the President himself to decide what is covered by Geneva Conventions, and what is not.

In short, it gives the President a green light to torture.

[ . . . ]

It will permit secret evidence, hearsay evidence, and even coerced testimony.

The Military Commissions Act authorizes the President of the United States to designate anyone—foreigner or citizen alike—as an “enemy combatant.” He can then detain this enemy combatant indefinitely, and if that person is not a U.S. citizen, that person has no recourse whatsoever.

“No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination,” the new law states.

This gives the President “the privilege of kings,” as Vincent Warren, executive director of the Center for Constitutional Rights, has noted. But Bush doesn’t want you to care about such little things.

The US is starting to look more like Turkey every day. How scary is that?

The Jurist has the rundown on the Military Commissions Act, and the worst part about it is the stripping away of the right of habeas corpus.

Habeas corpus is a legal idea derived from English common law, and it permits someone who is in prison to seek release from unlawful punishment. Basically what it does is requires the prisoner to appear in court so that the court can determine is the prisoner has been wrongly imprisoned and then make a decision as to whether or not the prisoner can be released. As Wikipedia's habeas corpus entry states: "The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action."

Can you imagine?! It safeguards the individual from arbitrary state action! Can you further imagine if Kurds in Turkey had recourse to a law like this, and it was actually used properly, to protect Kurds from the arbitrary actions of the state? Kurds would think they had died and gone to heaven! I was just talking to a friend last night and he mentioned that the thing every Kurd worries about is the constant and very real possibility of being arrested for nothing and charged with everything. That is the reality of life in Turkish-occupied Kurdistan.

The Jurist has a related article about the history of habeas corpus from a professor of history at the University of Virginia, specifically discussing a political crisis in England, 1689. The country was in political chaos with the threat of invasion running high. The government began to round up the politically questionable while suspending the right of habeas corpus. The argument used by the government? "Your security of your liberty?" Sound familiar?

The English parliament limited the suspension of habeas corpus to seven months. The result after the suspension period was that "82% of those jailed on charges of treason or sedition in 1689 and ‘90" were released without any harm tot he country. The experiment in suspension and reinstatement of habeas corpus in England at that time, proved that the legal system was more than fit to handle both liberty and security:

When we use habeas corpus, we protect the safety of both our physical selves and our moral selves. Members of Parliament saw this when they allowed their legislative suspension to lapse in October 1689. Englishmen everywhere saw this as King’s Bench considered the cases of hundreds of alleged traitors in the months following. For all their fears, political order was maintained and public safety ensured. So too was the safety of law and liberty. Well might the President reflect on this history before his signature makes the Great Writ quite a bit smaller.

Unbelievable! For a little backgrounder on the suspension of habeas corpus by a previous American president, check the Wikipedia link about to see what Abraham Lincoln did with habeas corpus during the American Civil War.

In another related article from the end of September, when Congress passed the Military Commissions bill, a lawyer from Fordham University School of Law discusses the suspension of habeas corpus as a "significant alteration to our structure of government" and the Constitution:

First, the U.S. Constitution establishes as a fundamental structural premise that there will be three independent branches of government that serve as checks and balances upon each other. Removing entirely the independent judiciary from any role in checking the conduct of the Executive and Congress is a substantial alteration to that structural premise. Second, the writ of habeas corpus has, since this country’s founding, served as a particularly important guardian of liberty. Throughout our history, when the government has captured and detained individuals, the “Great Writ” has served the basic function of guarding against arbitrary government in the form of unjustified and secret detention.

She goes on to quote Alexander Hamilton from the Federalist No. 84:

To bereave a man of life …without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

The last related item . . . A US Navy lawyer who had defended a Guantanamo prisoner and successfully challenged his imprisonment through a classic habeas corpus petition, was passed over for promotion by the US Navy, thus ending the lawyer's naval career:

"He [Lt. Cmdr. Charles Swift] brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."

[ . . . ]

"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."

In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional-law expert Kathleen Sullivan, 50; and former Bush campaign recount attorney Fred Bartlit, 73.

Lt. Cmdr. Swift will continue to defend his Guantanamo client pro-bono in civilian life.


Can you imagine a TSK officer doing something like that for a Kurdish prisoner, whether accused of being a "PKK terrorist" or not?

Man . . . why is it that America has great legal stuff like habeas corpus, or great political thinkers like Alexander Hamilton, Thomas Jefferson, or Benjamin Franklin, but Americans don't care anything about any of this?

Benjamin Franklin was right.