October 29, 2006
by Zen Garcia

Government as laid down by our fore fathers, should always support the protection of those rights and liberties established as guiding principles guaranteed to us by the US Constitution and Our Bill of Rights. That is why all public servants sworn to office swear an allegiance and an oath to protect and honor the principles set forth by the US Constitution. Somehow, somewhere along the way that oath has become meaningless as everyday big government attacks and maims the very heart of the articles that laid the foundation to make this nation the great country it had become.

With the passing of the the Military Commissions Act of 2006, almost 800 years of international precedence to protect human rights through habeas corpus law was nullified into non-existence and replaced by a new and terrifying expansion of tyrannical Executive rule.

"The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions," said ACLU Executive Director Anthony D. Romero.

Fearing the loss of Republican power in the mid-term elections, the inept and overly corrupt GOP congress has now authorized the President to establish special military tribunals to prosecute 'terrorist' suspects accused of threatening National Security. The rules permit the exclusion of a defendant from trial should 'secret' evidence be presented in a case and allows for conviction based on hearsay evidence or coerced statements solicited through torture. This Draconian legislation also authorizes a three-officer military panel the power to determine a detainee's status as an 'enemy combatant' and whether they are qualified for indefinite detention without the right of a habeas corpus petition to challenge the legality of detention in federal constitutional court.

The law also allows the president to ""interpret the meaning and application" of international standards for prisoner treatment meaning that the CIA can continue their secret program of kidnapping, excuse me 'rendition,' interrogating suspects abroad, outsourcing them to territories where the rule of law does not exist, and torture can be used unabated. There is even a war crimes immunity clause to protect interrogators for past actions which the US Supreme Court in June said violated U.S. and international law. Those that had committed such acts could have been prosecuted as war criminals for past behaviors. Interrogators had been refusing to continue the program as implemented prior to the passing of this law, but now it's business as usual with even greater move toward instituting new techniques as this law also narrows the range of activities that constitute a violation of Common Article 3 of the Geneva Conventions which outlaws torture, cruel, and inhumane treatment by international standards.

The most heinous aspect of this Draconian legislation is that it expands the definition of what a detainee is to include US citizens labeled 'enemy combatants' or 'domestic terrorists' by Section 802 of the first USA Patriot act which states,

"domestic terrorism means activities that-- `(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; `(B) appear to be intended-- (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States .'

Anyone who offers "material support" to someone engaged in hostilities against the US can be held indefinitely in military detention, regardless of whether he or she actually engaged in hostilities, and can be forced to relinquish

"citizenship by serving in a hostile terrorist organization. Specifically, an American could be expatriated if, with the intent to relinquish nationality, he becomes a member of, or provides material support to, a group that the United States has designated as a 'terrorist organization,' if that group is engaged in hostilities against the United States."

Taken into account with the broader definition of Section 501 of the Domestic Security Enhancement Act of 2003 or Patriot Act II, any violation of Federal or State law can result in the "enemy combatant" terrorist designation which means that regardless of being an American citizen if designated as an 'enemy combatant,' one can be denied habeas corpus, held indefinitely, tortured, convicted, and even sentenced to death based on traditionally non-admissible hearsay or coerced testimony, and possibly summarily executed with secret state evidence which never has to be released to public scrutiny. "The establishment of the writ of habeas corpus ... are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. ...[T]he practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. - Alexander Hamilton

"What does that mean for the American people? It means the same thing it did for Jose Padilla. You'll recall that Padilla was arrested in Chicago for terrorism and transferred to military custody, where, according to Padilla, he was tortured and involuntarily injected with drugs. The government's position is that since the entire world is a battlefield in which the war on terrorism is being waged, U.S. officials now have the power to arrest any American suspected of terrorism, place him in military custody, and subject him to the same "unlawful enemy combatant" treatment that Padilla received, until the war on terrorism has finally been won, no matter how long that takes."

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Cheney said the war on terror will not end in our lifetimes. He also said in a Sept 16, 2001 interview with Tim Russert of Meet The Press, "We also have to work, though, sort of the dark side, if you will. We've got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective." Cheney seems to have known that torture would be used to extract information from people considered terrorists. They are trying to rationalize that America needs to be able to torture 'terrorists' to protect the people. In an interview Tuesday with WDAY of Fargo, North Dakota, Cheney was asked if "a dunk in water is a no-brainer if it can save lives." The vice president replied, "Well, it's a no-brainer for me, but for a while there I was criticized as being the vice president for torture. We don't torture. That's not what we're involved in." The people, however, are worried about the indiscriminate torture of everybody including American citizens.

One has to remember that according to Patriot Act I, an 'enemy combatant' is anyone who engages in expressing dissenting view or opinion against government policy when not satisfied with current policy. Under the Military Commissions Act of 2006, any person deemed an 'enemy combatant' whether an American citizen or not, can be tortured, detained, and denied Constitutional protections should the Executive branch consider that person a threat.

Jacob Hornberger wrote, "The only reason that Americans do not find themselves at Gitmo is because the Pentagon, in its discretion, decided not to send Americans suspected of terrorism to Gitmo. That discretionary decision could be changed at any time, just as the current policy of "rendering" foreigners to Syria and other tyrannical regimes for torture can be changed at any time to include Americans. The same holds true for Americans accused of terrorism in the future - they could easily find themselves before a kangaroo military tribunal fighting for their lives rather than in a U.S. district court. After all, no one should forget the Padilla doctrine. Even though Jose Padilla, an American citizen, is in federal court now, the president and the Pentagon have made it perfectly clear that they now have the power to arrest any American for terrorism and send him to the military for punishment, bypassing the federal-court system. In fact, there's little doubt that if Padilla is acquitted in federal court, the feds intend to yank him back into military custody as an "enemy combatant" in the "war on terrorism," despite the bar on double jeopardy in the Bill of Rights."

"The provisions of Bush's new torture law mean that Americans have lost the key, constitutional right on which Anglo-American criminal law (and criminal-law procedures in true democracies in general) is founded; that's the basic right of an individual to know why he or she is being apprehended and detained. Now, technically, as in Stalin's Soviet Union, Hitler's Germany, Mao's China or Pol Pot's Cambodia, anyone labeled an "enemy combatant" - again, by whom; by Bush? - can be whisked away and never heard from again. That kind of authority, in the hands of corrupt or untruthful politicians, may or may not be an effective tool in some kind of "war on terror," but it certainly can be a useful tool when it comes to silencing their opponents." said Edward M. Gomez, a former U.S. diplomat and staff reporter at TIME.

There is a case pending right now where an Iraqi born American citizen, Mohammed Munaf, is in the fight of his life against the Iraqi and US governments for alleged involvement in a conspiracy to abduct and hold hostage for two months three Romanian journalists in Iraq. He was sentenced to death just last week and is being held in a US-run prison at the Baghdad airport. Munaf, arrested by US troops last year, was charged with kidnapping three Romanian journalists and holding them hostage for nearly two months. "Just weeks ago, it appeared he would be set free. Munaf's attorneys claim the presiding judge promised to dismiss the charges after he concluded there was no material evidence to support a conviction."

The residing judge had been prepared to dismiss charges until two US military officials including an unnamed general stepped into the courtroom and requested a private meeting with the judge. The defense was asked to leave the courtroom. One officer claiming to be an official from the Romanian embassy said Romania "demanded" Munaf be put to death. 15 minutes later the judge called in the defense, ruled Munaf guilty, and then sentenced he and four other defendants to death without hearing any additional evidence.

In an emergency motion filed two weeks ago, Munaf's attorneys wrote, "Mr. Munaf was convicted and sentenced to death by an Iraqi court operating under glaring procedural deficiencies and the direct manipulation of US military personnel." One of the 3 victims Edward Ovidiu Ohanesian, whom traveled to Iraq with Munaf to interview former interim Prime Minister Ayad Allawi, said he finds it difficult to believe that Munaf was involved in the kidnapping as he himself endured the same ordeal as the other 3 kidnapped victims. "I think he was a collateral victim," he said in an interview with the Associated Press. "Munaf was held with us the entire time." Ohanesian said. Reporters Without Borders said it was outraged that Munaf was charged with the kidnapping of three Romanian journalists. "We have confidence that the Romanian justice system will do its utmost to shed light on this disturbing case. They must punish all those implicated in what appears to be a put up job, in line with their wrongdoing".

When questioned, representatives of the Romanian government said that they had not authorized any US official to speak on its behalf, was not in fact seeking the death penalty in this case, and did not want to push ahead with charges against Munaf because of a lack of evidence. Lawyers representing Munaf stateside last week filed a petition in federal court to stop the transfer of Munaf from American to Iraqi custody where the sentence would be carried out; citing that "his conviction in the Iraqi court is a farce and that he was not allowed to present evidence or witnesses in his defense and that Munaf made incriminating statements only after threats of violence and sexual assault (were levied) against him and his family." That petition was rejected by a federal judge just three days ago and Munaf will now be handed over to Iraqi authorities where he will be executed.

In declaring the fight on the war on terror, the Bush administration has consolidated presidential power, reduced civil liberties, ramped up government secrecy, and granted themselves and their agents, Draconian police state measures which decimate the US Constitution and our Bill of Rights.

With the passing of the Military Commissions Act, the Executive branch effectively eliminates Habeas Corpus for anyone considered an 'enemy combatant' anywhere in the world and establishes a separate judiciary in which to enact punishment which may include sole authority, power to detain, torture, indefinitely hold, and even execute anyone the President so wishes. He has stripped the right of the judiciary to review cases the Executive brings against 'enemy combatants.'

Jakob Kellenberger, the president of the International Committee of the Red Cross, criticized the government's passing of the new U.S. Military Commissions Act because it has weakened protections guaranteed by the Geneva Conventions by broadening the definition of an enemy combatant, failing to guarantee prisoners the right to a fair trial and by failing to explicitly prohibit the use of evidence obtained by coercive torture. The International Committee of the Red Cross also issued its second ever "concern" regarding the actions of a warring Nation. The first "concern" issued by the ICRC came in 1944 with concern over Nazi Germany's treatment of concentration camp detainees. In part 3 of this series I will compare legislation and tactics used by Nazi Germany to legislation and tactics used by the Bush administration, as it seems we are following the very same blue print. "Those who forget the lessons of history are doomed to repeat it." God help us all.

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Zen Garcia [send him email] is an activist and writer in Athens, GA.  Find more of his writings at www.endeavorfreedom.org/