Let me make the argument why this is bad.
The reason it is so bad, is that it concentrates power. Our system is premised on diffusion of power, on the presumption that bad people do bad things and even good people do bad things. By separating power, we keep that in check. Thus the Executive can charge a crime, the judiciary and a jury must agree (requiring an indictment under the 5th Amendment) but the determination of guilt is left to the Courts and the People.
With this law, we are concentrating the power to Charge in the Executive. In regards to resident non-citizens the power is effectively absolute. So for example, my next door neighbor is a naturalized citizen, but his wife is a resident alien (from England) and has been here for over twenty years. The President – or whomever he delegates the power to – could decide that my neighbor’s wife is an illegal enemy combatant. No indictment, no habeas, no right to a “speedy trial,” drastically limited rights in a military trial. Will she get her one phone call to call her husband, or will the alternative interrogation techniques start immediately? Now you can argue that this is unlikely, but the probability is not the issue. The issue is that the Government now can.
For citizens, it appears – appears mind you – that the insertion of the word Alien in the Bill forestalls the [only] Military Tribunal for US citizens and keeps Habeas. HOWEVER, what it does not forestall is the Executive’s power to unilaterally – without indictment - declare a US citizen an unlawful enemy combatant and detain them. Again this is contrary to the 5th and 6th amendment. Furthermore, once in the maw of the system, for a citizen to challenge the Government’s assertion has been made monumentally more difficult. Finally, reading the law, it is obviously subject to interpretation of the many co-joined clauses and definitional terms in other sections of the US Code. So do we still have the Right but without any remedy of enforcement?
Now, look at the definition of an unlawful enemy combatant – which again the President or whomever he designates can so declare - look at the criteria for such a designation.
a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or ….
Now look at the definition of Co-belligerent.
CO-BELLIGERENT.—In this paragraph, the term ‘cobelligerent’, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.
Now look at the definition of material support for terrorism
PROVIDING MATERIAL SUPPORT FOR TERRORISM.—
‘‘(A) OFFENSE.—Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct. ‘‘
(B) MATERIAL SUPPORT OR RESOURCES DEFINED.—In this paragraph, the term ‘material support or resources’ has the meaning given that term in section 2339A(b) of title 18
Now look at the definition of material support:
…the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; …
www4.law.cornell.edu
The two points I would ask you to consider is that :
(1) the definition of material support is broader than the side of a barn. Lets rewrite the sentence above and extract the unneeded adjectives. Simplistically: … the term “material support or resources” means any property or service.
(2) one could be declared an unlawful enemy combatant on the basis of supporting a position against a “co-belligerent.”
So in theory, if you are naturalized citizen of Arab descent, and you sent money home to your relatives on the West Bank, and that person is a plumber who fixed a toilet in for a Hamas member, you could be declared an unlawful enemy combatant?
Heck, look at the case of this guy.
For several years, Javed Iqbal has operated a small company from a Brooklyn storefront and out of the garage at his Staten Island home that provides satellite programming for households, including sermons from Christian evangelists seeking worldwide exposure….
But this week, the budding entrepreneur’s house and storefront were raided by federal agents, and Mr. Iqbal was charged with providing customers services that included satellite broadcasts of a television station controlled by Hezbollah — a [claimed: ww] violation of federal law….
“The charge lurking in the background is material support for terrorism,” Stephen A. Miller, an assistant United States attorney, told United States Magistrate Judge Gabriel W. Gorenstein. He said Mr. Iqbal, 42, was a flight risk because he has family in England and Pakistan. “We think there is a strong incentive for him to run,” Mr. Miller said.
nytimes.com
He’ll get his day in Court, but would he have it this law had been in place?
What about the Padilla case: an American citizen, declared an unlawful enemy combatant, held for years and tortured?
Message 22902761
Padilla may be as bad as the Government claims, but heretofore what was done to him was arrest, imprisonment, and punishment by Executive Assertion. I cannot imagine how anyone would be comfortable with that.
To sum, from my perspective you don’t give this much power to one branch of the Government. In effect, to grant this much power is to do so on Faith: that those wielding the power always do so with the best intentions. Yet, the Constitution & the Bill of Rights are not based on Faith but the opposite: that power must be constrained, and as above, good people can do bad things and bad people do worse. Think about the NRAs arguments regarding the 2nd amendment. They’ve taken an absolutist position -- that once a Right is weakened, you’ll never make it strong again.
While there clearly is a problem, this law (like too many others) was rushed through and poorly drafted. I wouldn’t give this power to any President in our entire history, except arguably Washington or Madison. But they wouldn’t have taken it. IMO , this is about defending “our” Rights from encroachment. Do we really want to weaken the Rights of 300 million people because we want to “get” a dozen, or a hundred or 1000 pissant psychopaths? I’d argue we can get them just fine now (or with some minor tweaking – not this). It just takes a little longer.
ww
p.s. I’ve used up my word quota for the week….. |
