WILL THE CONGRESS FORMALLY INITIATE THE POLICE STATE AND THE END OF HABEAUS CORPUS WITH THIS BILL?
Paging Franz Kafka
Friday, July 28, 2006, 02:56 PM
So let's say – and why not – about two years from now you have to travel by commercial airliner to a major US city. Let's also say that by then the conflict in the Middle East has expanded to include Iran and Syria, with concomitant domestic “blowback” in the form of small but unnerving terrorist incidents.
And finally let's imagine that you share former airline pilot – and superb aviation columnist – Patrick Smith's penchant for taking photographs of exotic or otherwise striking aircraft, and that you had indulged that hobby at various times at sundry airports.
After arriving at the airport for this particular trip, circa 2008, you are unaccountably detained at the check-in. A small phalanx of grim-faced people suddenly materialize and take you out of the line for reasons they refuse to explain.
You learn, to your astonishment, that your name has been placed on an international “no-fly” database after your last flight. It is not explained to you that your name had been put there by a federal Air Marshal as a way of filling his monthly quota.
The Marshal wasn't a bad or even particularly ambitious man; like most Americans, he had a wife and kids and a second mortgage – a resetting ARM. A good performance review would mean a badly needed raise, so when the Marshal saw you snapping digital photos of an El Al plane during your layover at JFK, he snagged your name and personal information and inserted it in his Surveillance Detection Report (SDR). “This guy's probably some harmless schlep,” the Marshal mused to himself, “but I'm sure nothing will happen to him – and I need that raise.”
Long after the Marshal had gotten his raise, you are detained in a small, windowless room at an airport while some people who refuse to identify themselves interrogate you in detail about your travel plans, background, and associates – and others in another location scrutinize a surprisingly detailed electronic dossier compiled on you by agencies you've never heard of.
The minutes, which seem like hours, slowly become hours. You spend a night detained at the airport under armed guard. In the morning another group of inquisitors arrives and announces that, for reasons you can't know about, you are to be taken into military custody as a suspected enemy combatant. Shackled and bracketed by guards, you are taken from the detention center and flown to another facility. This, you are told, is the pre-trial holding cell for suspects scheduled for arraignment before the special military commission established for your “district.”
At this point, you confront perhaps four possibilities.
*Your captors may conclude that you're just what you appear to be – a frightened, confused, and innocent US citizen who should be released at once.
*You may be told –as were Jose Padilla and Yassine Oussaif – that the Feds need you to act as an informant of some kind, and that if you cooperate this whole mess can be cleared up immediately – although if you refuse, it might take a little longer....
*Whether or not the previous offer is made, you could find yourself arraigned and put on trial before a military commission that operates with rules very different from the Due Process standards that apply to civilian courts. One of the charges against you arises from that Air Marshal's SDR: “Hazarding” an aircraft by taking unauthorized photographs of the El Al jetliner at JFK. (Unless you were carrying out illicit surveillance, why would you be taking photos of an Israeli plane?)
*Whether or not you are put on trial, and irrespective of an acquittal, you could find yourself detained until “cessation of hostilities” in the ongoing “war on terror.” Since this has been described as an inter-generational conflict, this would be tantamount to a life sentence.
Surely, our government – that beacon of decency in a gloomy world -- wouldn't detain a perfectly innocent person for years, even after he had been entirely cleared of terrorism-related charges?
Surely it would – and already has. Just ask 32-year-old Benamar Benatta, released from US custody on July 20 after being a prisoner for nearly five years. Granted, Benatta – an Algerian Air Force Colonel who asked for political asylum when he arrived at the US-Canadian border on September 5, 2001-- is an exceptional case. But even though he was cleared by the FBI of terrorism connections in November 2001, Benatta served what amounts to a 58-month prison sentence.
His story has a happy ending, however: He has at last been able to obtain asylum in the freest nation in our hemisphere.
That's right – Canada.
(Those words are written with considerable anguish by someone who loves our country and remembers what it looked like when it was free.)
Every element of the nightmare scenario described above is based on policies and practices put in place by the Bush regime. The most abhorrent of those abuses – summary imprisonment without trial, or prolonged imprisonment despite acquittal – would be codified in law if Congress enacts the administration's proposed “Enemy Combatant Military Commissions Act of 2006.” That measure would ratify most of the unconstitutional practices struck down by the Supreme Court's recent ruling Hamdan v. Rumsfeld.
A “deliberative draft” of that bill (.pdf) leaked to the blogosphere (marked “close hold” -- meaning that it was intended to circulate among only a privileged few) contains two passages explicitly permitting indefinite imprisonment without trial, or in spite of acquittal:
Chapter 1, Section 104(e) states, in relevant part:
“An enemy combatant may always be detained, regardless of the pendency or outcome of a military commission, until the cessation of hostilities as a means to prevent their return to the fight.”
It's important to recognize that the Act doesn't limit the category “enemy combatant” to people who bear arms on the battlefield, but applies it to suspected spies, saboteurs, or allies of terrorist groups as well.
Chapter 2, Section 201(c) reiterates – and even expands -- that claim:
“A person charged with an offense under this Act may be tried and punished at any time without limitations. An acquittal or conviction under this act does not preclude the United States, in accordance with the law of war, to detain enemy combatants until the cessation of hostilities....”
A good critique of the proposed bill (scroll down) is offered by Dave Glazier, a military law specialist and retired career Navy Surface Warfare Officer whose 21-year career included command of the guided missile frigate USS George Philip.
Protesting that the draft legislation “seeks congressional ratification of several of the more egregious elements of the current commissions which are unsupported by historic practice,” Glazier points out that the act “clearly declares that enemy combatants may lawfully be detained until the end of hostilities, regardless of whether they are ever tried” and “fails to address the ever more evident issue that a large portion of those detained in the war on terror are truly innocent.”
As seen in the excerpts above, the bill is much worse than Glazier describes, since it would authorize the prolonged imprisonment of people who actually prove their innocence in a court institutionally biased in favor of conviction.
And the above-noted case of Jose Padilla offers a precedent for the designation of US citizens as “enemy combatants” -- as a tactic intended to extort their cooperation as informants.
So ... if the regime gets its way, and recent trends suggest that it will, don't be surprised to learn in a few years that Congress blithely created the framework for summary imprisonment of US citizens without trial, something Osama bin Laden couldn't have done in a thousand lifetimes.
thenewamerican.com |
