Bruce Ackerman on the Hidden Evils of the Torture Bill

Yale Professor Bruce Ackerman, writing in the LA Times:

BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an “enemy combatant” upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.

The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.

But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.

This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case — upholding the military detention of tens of thousands of Japanese Americans during World War II — has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.

Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.

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7 Responses to Bruce Ackerman on the Hidden Evils of the Torture Bill

  1. Eli Rabett says:

    Where are the petitions to bar ethics committee’s across this country demanding that Alberto Gonzales, John Yoo, and the rest of these torture enablers be disbarred? Unless the bar does what it can it is complicit, That means you.

  2. Chuck says:

    Welcome Citizen.
    It is now 1984.

  3. Ugh says:

    I find myself reading many things these days that give me the impulse to start writing documents that begin with the phrase “When in the Course of human events…”

  4. Does anyone have the section that applies to American citizens?

    The law is bad enough, but Bruce Ackerman suggests: The legislation authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States.” and later he writes: “… the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice.”

    I’ve been sent this suggesting it does not apply to U.S. citizens:

    S.3930
    Military Commissions Act of 2006

    Sec. 948c. Persons subject to military commissions

    Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter

    Sec. 948a. Definitions

    In this chapter:

    (1) ALIEN- The term `alien’ means an individual who is not a citizen of the United States.

    Thanks for any help.

  5. Risk, the interpretation comes down to how the sentence is construed. If the phrases are seen as distinct, then it applies to either an alien or a citizen. Conversely, if they are part of the same concept then they are just aliens. Either way, it makes me sick.

  6. just wondering says:

    Donnybrook, I don’t see how the sentence can be parsed so that the part about supporting hostilities doesn’t modify “alien unlawful enemy combatant.” A U.S. citizen can be an “unlawful enemy combatant” under that definition, possibly meaning indefinite detention, but can’t be tried by one of the military commissions authorized pursuant to this act. U.S. citizens also retain the right to habeas corpus, although they would not be permitted to assert the Geneva Conventions in arguing their case. All of which is bad enough, so why would anybody need to exaggerate?

  7. Morten Christoffersen says:

    Here is how the law applies to american citizens:

    The law defines a long list of acts as “war crimes”. Act, that never before have been war crimes. Like conspiracy, terrorism, material support for terroism and more.

    Imagine that you as an american citizen is being arrested for providing material support to a terrorist organization. You donated money to a charity that turns out to have links to an organization on the state departments terror list.

    You are arrested and put in jail. You file your habeas corpus petition and it goes before the court. The government smiles and says: “your honor!, Citizen X is being held for providing material support for a terrorist organization. Under the MCA we can try him for war crimes in a military commission, using coerced testimony, hearsay and other “creative” rules”. The judge will look at the argument and say: “”Yes, you’re right, the law does make that conduct unlawfull and triable before a military commission. Sorry Cititzen X, but it looks like they can hold you”.

    That’s how the law apply to citizens. The right to Habeas Corpus does not mean much, if the government can legitimately hold you for acts that never before have been triable before a military commission.

    The big disgrace aboout this act is not the suspension of Habeas Corpus, but the crimes that anyone can now be charged with.

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