The Assault on Democracy
by Mathew Rothschild
The Progressive magazine, November
Wlost a big chunk of our democracy on
eptember 28, 2006. That was the day the Senate voted, 65 to 34,
to approve the Military, Commissions Act, assuring that this "flagrantly
unconstitutional" bill, as Senator Patrick Leahy of Vermont
accurately labeled it, would become law.
There can be no denying that we, as a
people, are much less free today.
This law skews our system of checks and
balances. It eviscerates the Fourth, Fifth, and Sixth Amendments.
And it repudiates the Magna Carta.
It allows the President of the United
States to label anyone-including a U.S. citizen-an enemy combatant
and to deprive that person of basic due process rights to challenge
his or her detention in court. And it authorizes the President
"to try alien unlawful enemy combatants" (the bill's
terminology) before a military tribunal, with inferior legal safeguards.
If convicted of a serious crime in such a kangaroo court, these
enemy combatants can then be executed.
This law destroys the writ of habeas corpus,
the guarantee that you can challenge your detention in court.
Thomas Jefferson once said, "Habeas corpus secures every
man here, alien or citizen, against everything which is not law,
whatever shape it may assume." But neither alien nor citizen
is secure today.
"What this bill will do is take our
civilization back 900 years," said Senator Arlen Specter,
Republican of Pennsylvania, who introduced an amendment to preserve
habeas corpus. That amendment failed 51-48, and then Specter turned
around and voted for the bill.
The act defines an enemy combatant as
"a person who has engaged in hostilities or who has purposefully
and materially supported hostilities against the United States"
or anyone who "has been determined to be an unlawful enemy
combatant" by a tribunal set up by the President or the Secretary
of Defense. This extraordinarily broad definition is not limited
As the Center for Constitutional Rights
has noted, this could mean that even lawyers for detainees at
Guantánamo could be designated as enemy combatants since
they could be construed as giving "material support"
to those engaged in hostilities against the United States.
This law, says Vincent Warren, executive
director of the center, gives the President "the privilege
The law also dilutes Common Article 3
of the Geneva Conventions. The Supreme Court, in the Hamdan decision
this past June, said the Executive Branch had to uphold Common
Article 3. But this new law says forget about that.
Common Article 3 requires nations to treat
detainees "humanely," and it forbids "violence
to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture" and "outrages upon personal
dignity, in particular humiliating and degrading treatment."
That seems pretty clear. So it was an
act of grotesquerie when the President of the United States followed
the bloody footprints of the Vice President up Capitol Hill to
seek "clarity" about what the definition of "outrages
upon personal dignity" is.
The guidance the law provides is not encouraging.
It outlaws torture, but only when it is "specifically intended
to inflict severe physical or mental pain or suffering."
Same with "cruel or inhuman treatment": It must be "intended
to inflict severe or serious physical or mental pain or suffering."
The law then defines "serious physical pain or suffering"
as an injury that involves "substantial risk of death, extreme
physical pain, a burn or physical disfigurement of a serious nature,"
and "significant loss or impairment of the function of a
bodily member, organ, or mental faculty" Note the qualifiers:
"substantial," "extreme," "serious,"
and "significant." They give plenty of leeway. In fact,
the definition is eerily reminiscent of a 2002 Justice Department
memo that the Bush Administration had to repudiate. Now it is
essentially the law of the land.
The new act also violates Common Article
3's requirement that detainees be tried "by a regularly constituted
court, affording all the judicial guarantees which are recognized
as indispensable by civilized peoples." The passage of this
law indicates that we are not a "civilized people,"
for the Military Commissions Act does not provide those judicial
guarantees. It asserts that it does. But then it authorizes the
military tribunals to allow in secret evidence, hearsay evidence,
and coerced testimony.
An "allen unlawful enemy combatant,"
once convicted, can then be sent abroad to be held in a penal
institution of any U.S. ally, the law states. Given the experience
of "extraordinary renditions," and the torture that
many detainees received at the hands of foreign governments, this
little clause has not gotten the attention it deserves.
One lat thing: The Military Commissions
Act retroactively grants immunity to Bush Administration -officials
who countenanced torture. Bush and Cheney and Donald Rumsfeld
and Alberto Gonzales thus gave themselves, as the ACLU notes,
a "get out of jail free" card for their previous actions.
Many legal experts believe the Supreme
Court, at least with its current membership, will overturn this
law. That may be why the Bush Administration and its allies immediately
began to saw away at the judicial branch.
"The Constitution ... provides the
courts with relatively few tools to superintend military and foreign
policy decisions, especially during wartime," the Attorney
General told a crowd at Georgetown Law School on September 29.
He added that judges should display "a proper sense of judicial
humility" and if they dotA, they "should not be shielded
At the same event, Newt Gingrich energetically
followed up. Supreme Court decisions that are "so clearly
at variance with the national will" should be overridden
by Congress or the President, he said. "NX/hat I reject,
out of hand, is the idea that by five to four, judges can rewrite
the Constitution, but it takes two-thirds of the House, two-thirds
of the Senate, and three-fourths of the states to equal five judges."
Never mind that this philosophy goes against
the foundational principle of our judiciary, as expounded in Marbury
v. Madison way back in 1803, that the Supreme Court is the ultimate
arbiter of the law.
Precedent means nothing to this crowd.
Power means everything.
That snap you hear is the judicial branch
Historians looking back on our era will
describe the Patriot Act and the Military Commissions Act as bookends
on the shelf marked "the assault on democracy."
The Republicans in Congress, with the
exception of seven in the House and one in the Senate, eagerly
torched our sacred parchments for the pettiest of partisan advantage
when they voted for this latest un-American bill.
The thirty-two Democrats in the House
and the twelve- Democrats in the Senate who voted for it represent
a profile in cowardice.
And the Democrats in the Senate who failed
to muster a filibuster when our very freedoms were on the line
also must search their conscience.
It is up to all of us now to fight back.
We cannot rely on the Supreme Court. We must warn our fellow citizens
that the democracy they thought they lived in is fading fast.
The Bush Administration and Republicans in Congress are looting
the treasury of our liberty. We must yell, "Stop thief."