THE MILITARY COMMISSIONS ACT: AN IMPENDING NIGHTMARE

Recently I learned, through Truthout, of a case of a legal resident of the United States who is being held at a North Carolina military brig without being formally charged. I was already familiar with two other cases of dubious constitutionality, those of U.S. citizens Yaser Esam Hamdi and José Padilla. The latter's case disturbed me in particular because he was held for three years without formal charges and when he was finally indicted, the allegations which the government had originally used as an excuse to keep him in detention were dropped. I know very well that three years is sufficient time for our government, using PSYWAR techniques of torture developed by the CIA, to destroy an individual's personality to such an extent that he is no longer capable of defending himself in court. Thus I shared the view of Padilla's lawyer that the sentencing of Padilla to 17 years and four months in a federal prison for what was essentially a "thought crime" was a travesty of justice which "did more harm to the U.S. liberty than any terrorist ever could." (Wikipedia entry under "José Padilla") So naturally I was concerned when I read about Ali Saleh Kahlah al-Marri, particularly because he is the first person not captured on a battlefield whose case involves the Military Commissions Act of 2006, the most dangerous and unconstitutional law ever passed in U.S. history.

According to the Truthout article, which was written by Matt Apuzzo of The Associated Press, Al Marri was originally arrested on charges of credit card fraud and given the constitutional rights that his status as a criminal suspect warranted. But then on June 23, 2003, President Bush declared him an enemy combatant and he lost those rights (but did not gain the protection of the Geneva Conventions as such a person normally would). He was transferred to a military brig, "the only [accused] enemy combatant held on U.S. soil." Like Padilla and other terrorist suspects, he has been tortured. The Justice Department has used the Military Commissions Act to ensure that if he is tried at all, Al-Marri will be tried by one of its notoriously unfair military commissions and not before a civilian court. Appuzo quotes a chilling exchange between Judge William B. Traxler of the 4th U.S. Circuit Court of Appeals and Justice Department lawyer Gregory Garre: Judge Traxler asked, "What you assert is the power of the military to seize a person in the United States, including an American citizen [emphasis mine], on suspicion of being an enemy combatant?" "Yes, your honor," replied Garre. It need not be pointed out that once this principle is established, it will mark the end of the American republic and our government of law. But is this just Garre's opinion?

President Bush pushed the Military Commissions Act through Congress, on the fifth anniversary of the attacks on 9/11, because even the administration's own placemen in the judiciary have questioned whether, in the absence of new congressional legislation, it alone has the power to declare someone an enemy combatant. The administration had to have congressional support, and a supine Congress complied, thus surrendering yet more of its own sovereignty. One only needs to read the text of the MCA to see that it gives the executive branch unlimited power to declare anyone an "Unlawful Enemy Combatant" (i.e., one not accorded the protections of either the Constitution or the Geneva Conventions), including American citizens. It defines "Unlawful Enemy Combatant" as any person "who before, on, or after the date of the enactment of the Military Commissions Act of 2006, 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 Secretary of Defense." There is no exception made for citizens or legal residents of the United States, and the person does not have to have been captured on a battlefield. Nor are the criteria which would make him a UEC spelled out-- it might be something as trivial as the fact that he has contributed money to an organization which opposes administration policy. Clearly Matt Apuzzo is right when he says that the government "can now send the military into any U.S. neighborhood, capture a citizen, and hold him without charge, indefinitely." (http://www.truthout.org/article/us-residents-military-brigs-government-says-its-war?)

But surely, one will say, the government had good reason in each of these three cases. All three men are Islamic fundamentalists, and sympathize with the goals of Al Qaeda. Al Marri in fact entered the U.S. on September 10, 2001, the very day before the attacks. < That is exactly what is so disturbing about them. Even if they could not have been proven to have been involved in the events of 9/11, given the fact that they had flirted with terrorism, it would seem quite easy to convict them of something, and the government would have looked heroic for trying to do so. After all, terrorism has always been illegal, and it doesn't require special legislation to convict a person on that charge. Why then have these men not been tried in civilian court, or in Padilla's case, tried only after three years in a military brig? There can be only one reason. The government is "testing the waters". The whole point of the Military Commissions Act is to facilitate terrorism-- state terrorism-- not stop it. In giving the executive branch unlimited power, it is trashing the U.S. Constitution and saying in effect, as did Louis XIV, "L'état c'est moi." And have no doubt about it: its next victims are going to be ourselves.