The Assault on Democracy

by Mathew Rothschild

The Progressive magazine, November 2006

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 to noncitizens.

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 of kings."

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 from criticism."

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 falling off.

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."

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