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September 27, 2006

"The president's power to imprison people forever"

Posted by Phil on September 27, 2006 8:07 AM

Glen Greenwald, Salon, Sept. 26:

The administration is obviously aware of the transparent, and really quite pitiful, election-based fear that is consuming Democrats and rendering them unwilling to impede (or even object to) the administration's seizure of more and more unchecked power in the name of fighting terrorism. As a result of this abdication by the Democrats, the Washington Post reports, the administration spent the weekend expanding even further the already-extraordinary torture and detention powers vested in it by the McCain-Warner-Graham "compromise." To illustrate just how profoundly dangerous these powers are, it is worthwhile to review a specific, current case of an actual detainee in the administration's custody.

Bilal Hussein is an Associated Press photographer and Iraqi citizen who has been imprisoned by the U.S. military in Iraq for more than five months, with no charges of any kind. Prior to that, he was repeatedly accused by right-wing blogs of being in cahoots with Iraqi insurgents based on the content of his photojournalism -- accusations often based on allegations that proved to be completely fabricated and fictitious. The U.S. military now claims that Hussein has been lending "support" to the Iraqi insurgents, whereas Hussein maintains that his only association with them is to report on their activities as a journalist. But Hussein has no ability to contest the accusations against him or prove his innocence because the military is simply detaining him indefinitely and refusing even to charge him.

Under the military commission legislation blessed by our Guardians of Liberty in the Senate -- such as John McCain and Lindsey Graham -- the U.S. military could move Hussein to Guantánamo tomorrow and keep him there for the rest of his life, and he would have absolutely no recourse of any kind. It does not need to bring him before a military commission (the military only has to do that if it wants to execute someone) and as long as it doesn't, he is blocked from seeking an order from a U.S. federal court to release him on the ground that he is completely innocent. As part of his permanent imprisonment, the military could even subject him to torture and he would have no legal recourse whatsoever to contest his detention or his treatment. As Johns Hopkins professor Hilary Bok points out, even the use of the most extreme torture techniques that are criminalized will be immune from any real challenge, since only the government (rather than detainees) will be able to enforce such prohibitions.

Put another way, this bill would give the Bush administration the power to imprison people for their entire lives, literally, without so much as charging them with any wrongdoing or giving them any forum in which to contest the accusations against them. It thus vests in the administration the singularly most tyrannical power that exists -- namely, the power unilaterally to decree someone guilty of a crime and to condemn the accused to eternal imprisonment without having even to charge him with a crime, let alone defend the validity of those accusations. Just to look at one ramification, does one even need to debate whether this newly vested power of indefinite imprisonment would affect the willingness of foreign journalists to report on the activities of the Bush administration? Do Americans really want our government to have this power?

The changes that the administration reportedly secured over the weekend for this "compromise" legislation make an already dangerous bill much worse. Specifically, the changes expand the definition of who can be declared an "enemy combatant" (and therefore permanently detained and tortured) from someone who has "engaged in hostilities against the United States" (meaning actually participated in war on a battlefield) to someone who has merely "purposefully and materially supported hostilities against the United States."

Expanding the definition in that way would authorize, as Kate Martin of the Center for National Security Studies points out, the administration's "seizure and indefinite detention of people far from the battlefield." The administration would be able to abduct anyone, anywhere in the world, whom George W. Bush secretly decrees has "supported" hostilities against the United States. And then they could imprison any such persons at Guantánamo -- even torture them -- forever, without ever having to prove anything to any tribunal or commission. (The Post story also asserts that the newly worded legislation "does not rule out the possibility of designating a U.S. citizen as an unlawful combatant," although the Supreme Court ruled [in the 2004 case of Hamdi v. Rumsfeld] that there are constitutional limits on the government's ability to detain U.S. citizens without due process.)

The tyrannical nature of these powers is not merely theoretical. The Bush administration has already imprisoned two American citizens -- Jose Padilla and Yaser Esam Hamdi -- and held them in solitary confinement in a military prison while claiming the power to do so indefinitely and without ever having to bring charges. And now, it is about to obtain (with the acquiescence, if not outright support, of Senate Democrats) the express statutory power to detain people permanently (while subjecting them, for good measure, to torture) without providing any venue to contest the validity of their detention. And as Democrats sit meekly by, the detention authority the administration is about to obtain continues -- literally each day -- to expand, and now includes some of the most dangerous and unchecked powers a government can have.

There are two reasons, both supported by our quaking fear of the omnipotent terrorist threat, why these measures are being politely discussed rather than angrily dismissed. The first is because we don't care about the presumption of innocence for anyone suspected of terrorism; the second is because there's a popular denial of the humanity of the potentially innocent people in question. There's no other reason we're able to even consider suspending habeas corpus, denying due process, and defying the moral injunction against torture. And to think we're being led into it by the ideologues who drape their think tanks and foundations with names like Liberty and Freedom and Heritage and Christian.

Those laws aren't there to protect black-hearted terrorists with scimitars and dripping fangs. They're there to protect innocent people. But what if we don't consider those innocents to be people? Americans who never knew Natalee Holloway or Laci Peterson or Terri Schiavo will weep real and copious tears for them because "they're just like me." But someone like Bilal Hussein or Maher Arar, victims not of rare and random violence or misfortune but of systematic government actions? Not so much. They're foreign, you see. We may not actively hate them or wish bad things upon them, stuff happens.

But dehumanization doesn't stop at the border. Look at the way the extremists on the right talk about liberals and "the left." We're treasonous, immoral goons; when they're not laughing at our fool-headed clowning, they're reviling us as libertine traitors who hate this country. Always our "rage" and "hatred" are underscored--we are not alarmed citizens or political opponents seeking to better our nation: we are irrational enemies of America and freedom. There's no such thing as an "innocent liberal." The less sense it makes--why would we seek the destruction of the place where we live?--the more irrational it proves we are, and the less entitled we are to the protections the Constitution once guaranteed.

Who is it, really, that hates our freedom? The Republicans, with the spineless Democrats' acquiescence, are seeking to win another election by throwing red meat to the mob. They are cowards peddling fear, and if they succeed, it will eventually be the mob that rules.

UPDATE: I thought I might be being a tad hyperbolic with that fear-talk about liberals being next and stuff....

But inserted at the very end [of the summary of the National Intelligence Estimate on "Trends in Global Terrorism"] is this one overlooked, though seemingly quite important, passage that identifies other terrorist threats:

"Anti-U.S. and anti-globalization sentiment is on the rise and fueling other radical ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt terrorist methods to attack US interests. The radicalization process is occurring more quickly, more widely, and more anonymously in the Internet age, raising the likelihood of surprise attacks by unknown groups whose members and supporters may be difficult to pinpoint." It continues: "We judge that groups of all stripes will increasingly use the Internet to communicate, propagandize, recruit, train and obtain logistical and financial support."

There have been scattered reports [2nd link mine--pk] over the last several years that the Bush administration's anti-terrorism programs have targeted domestic political groups solely because such groups espouse views contrary to the administration's. That this claim about "leftist" terrorist groups made it into the NIE summary is particularly significant in light of the torture and detention bill that is likely soon to be enacted into law. That bill defines "enemy combatant" very broadly (and the definition may be even broader by the time it is enacted) and could easily encompass domestic groups perceived by the administration to be supporting a "terrorist agenda."

Similarly, the administration has claimed previously that it eavesdrops on the conversations of Americans only where there is reasonable grounds (as judged by the administration) to believe that one of the parties is affiliated with a terrorist group. Does that include "leftist" groups that use the Internet to organize? This NIE finding gives rise to this critical question: Are "leftist" groups one of the principal targets on the anti-terrorism agenda of the Bush administration, and if so, aren't the implications rather disturbing?

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